Tuesday 20 August 1991

Canada's Future: The Women's Agenda

York University Centre for Public Law and Public Policy



Chair: Silipo, Tony (Dovercourt NDP)

Vice-Chair: Bisson, Gilles (Cochrane South NDP)

Acting Chair: Drainville, Dennis (Victoria-Haliburton 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)


Carter, Jenny (Peterborough NDP) for Ms Gigantes

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

McClelland, Carman (Brampton North L) for Mr Offer

White, Drummond (Durham Centre NDP) for Mr Winninger

Wilson, Gary (Kingston and The Islands NDP) for Ms Harrington

Clerk: Brown, Harold

Staff: Kaye, Philip, Research Officer, Legislative Research Service

The committee met at 1007 in room 151.

The Acting Chair: I would like to call the committee to order. My first item of business is to welcome all those in the province of Ontario who are watching the committee hearings on their television sets. We are glad to have you with us as we look at the role of Ontario in Confederation.


The Acting Chair: I would ask for those who are going to present their deputation before the committee to come forward now. I would like to welcome you today for coming before this committee and making a presentation. I believe the clerk has indicated to you that you have a half an hour to give your presentation. Hopefully you will leave some time at the end of your deputation so that we can ask some questions. If you could begin by introducing yourselves and indicating the group to which you belong.

Mrs Armstrong: My name is Sally Armstrong. My colleague is Carmencita Hernandez. Together we are part of a committee called Canada's Future: The Women's Agenda. We are very pleased that you have given us a spot on your own agenda to bring some of our concerns to your table. We should make it clear that other members of our organization will be addressing you at another time in another capacity. They will bring some of the more constitutional details to you. Mary Eberts, for instance, I believe is on your schedule and she is very much a part of our committee. I would like to include in my remarks to you a very brief history of our organization. And yes, we will leave plenty of time for questions.


It is very important to us, Mr Drainville, that you understand that we are not a special interest group. We represent 52% of the population in Canada. We feel it is very important at this critical time in our country's history that people see women as needing to be at the table beside men, rather than as representing a special interest group and going back to report to our clubs or our regions.

We do not begin to suggest that we have all the right answers. What we do suggest very strongly is that we have a perspective that has not been at your table in the past -- a perspective that will offer as many problem-solving solutions as anybody else who has been at the table. For example, while people are very concerned about the effect of decentralization on health programs -- and certainly women are very concerned about that because women and children tend to be the major recipients of social programs -- a decentralization of power or a change of power across the country might be very good for women. When I think of teachers and nurses, for instance, and the kinds of hoops they have to jump through when they tranfer province to province. So we are not bringing a carte blanche "We refuse to co-operate" or "We're totally against." We are saying we must be at the table because we have an interesting perspective to bring to you.

Our group began with an event called Equality Eve. It happened on February 14. It was to celebrate the inclusion of women in the Charter of Rights and Freedoms, the 10th anniversary of that inclusion. But because we asked women across Canada to come together to celebrate, we thought it was a very good time for them to perhaps hold discussions at their dinner tables, pizza parties, pot-luck suppers, to talk about where the country needs to go and how the problems need to be fixed. We were astonished when more than 5,000 women -- we think probably 7,000, but more than 5,000 -- became involved in these get-togethers. They filed a report to us. We filed their report to the Minister responsible for the Status of Women, Mary Collins. That is where our present group, Canada's Future: The Women's Agenda, came from.

The women's very, very clear message to us was: "Tell us where we should go from here. Tell us how we can help. We insist that we are involved." To that end, we have commissioned seven academic papers. Those papers are in fact now in and we are editing them into a very user-friendly booklet that will allow women across Canada -- certainly women all over Ontario -- to be very well informed about the issues at stake. Women of course are not the only people in Canada who do not understand the intricacies of constitutional debate. Hardly anybody does. But we intend to inform women so that they can come back to you with reasonable input.

To address question 3 under the women's listing in your agenda, "What mechanisms can ensure meaningful involvement in the process of constitutional change?", we feel that our booklet is going to do that for thousands of women. But we want to say to you that we feel your job is to do that -- to get information out to all of the people, just as we are concerned about getting it to women. That will really allow citizens to make a contribution to your committee. That will allow them to say, "Now I understand exactly how this is going to affect me and my children and my job and my transportation and my moving around the province." We feel that if we can get that information out, we will be doing the best job we can do on behalf of women.

We feel, finally, that if you can assist us in making sure women in Ontario are well-informed, we can assist you in bringing the views of all of these women back to your table when they come in after they have received our booklet. It is our hope that when women have had an opportunity to meet again and discuss the contents of the booklet, we will hold a national conference for women on the Constitution. It is at that point that we feel we can make the greatest impact. Carmencita, I think, will pick it up from there.

Miss Hernandez: I would like to reiterate what Sally has said, that women compose at least 52% of the population. Women in general should not be considered as an interest group but a vital component of the society. In relation to that, visible minority and immigrant women are part of women's constituency and part of this country itself. Immigrant and visible minority women should not be looked at as a special interest group, although people should recognize that there are particularities because of our status and our colour.

It is very important for us that the Constitution gives a commitment to gender equality. The reason I say that is because this country, even at this time, does not recognize the equality of women to men. It is very important that we make use of all the tools, legislation, statutes and acts to ensure the equality of women.

In addition to recognizing women as a vital component of this society, a commitment from government to equality would give at least an assurance that universal social programs will be in place and will not be jeopardized. We are very concerned that with decentralization, social programs will be cut back and social programs will get lost. The impact would be on a lot of women, especially immigrant and visible minority women.

We also recognize that there is systemic discrimination in the society. Giving recognition to equality of gender, which would also include recognizing the differences in colour of this particular gender, would ensure a statement from the government, or a commitment from the government, that we will say no to discrimination in any institutionalized form.

In addition to that, a strong statement and commitment to gender equality would reiterate or recognize the contribution of women to the economic growth of this country. It is very important that the Constitution be the tool that we can use to question any inequality we might face. We believe that the Constitution is the supreme law of the land and we believe that the people of the land are composed of both men and women. In Canada especially, they are composed of a lot of men and women from different cultures, colours and creeds.

Mr Malkowski: Thank you for your presentation. The one point you said you wanted to emphasize was the fact of participation, and you were talking about equality of participation. Do you mean that the numbers should be balanced for men and women representatives when you are talking about constitutional reform? Could you please clarify that?

Second, when you were talking about decentralization, can you explain more what the impact would be on women and perhaps give us an example that would help us to understand what decentralized reforms you would or would not like to see?

Mrs Armstrong: To answer your second question first, I mentioned earlier that Mary Eberts will be addressing your group and will bring particulars of constitutional change to you. The example I gave earlier of decentralization is the fact that I think it is very well accepted that women and their children are the recipients of most of our social systems. If those social systems are put in jeopardy, as people have indicated they probably will be with decentralization, we would be concerned.

To jump into your first question, our concern is not so much that it is exactly 52% women and 48% men at the table; our concern is that the women who are at the table are here to make sure women across Canada are getting their views known. It is not enough to put what some people have called tame people at the table who will go along with the status quo. The women in this country need to be assured that somebody at the table is going to put himself or herself in their shoes and say: "I'm dealing with these problems. I understand about the kinds of things women know." To double up again on the questions, we want to make sure there are women at the table who will look out for women across Canada. We do not want tame people who will simply go along with the status quo.

We will look at decentralization mostly because of the health issue. But when decentralization happens, other kinds of things that have held women -- teachers, nurses -- back in the past can perhaps be solved. Does that answer your question?


Mr Malkowski: Yes, it does. Thank you very much.

Miss Hernandez: In addition to that, I think it is equally important that when groups come to make presentations, questions from the floor also come out regarding the women's agenda. It is also good to take that proactive role in ensuring that various groups consider or at least think about the Constitution and women.

Mrs Y. O'Neill: Thank you for coming this morning. I am pleased with the direction you have taken since February. I know you were pressed when you came before us in March because of that time line. Could you tell us a little bit about what you are doing with the other committees? You mentioned the minister at the federal level, Mary Collins. Have you had invitations from the other provincial committees, some of which we will be talking to next week? Also, what is your contact with the federal level on this constitutional issue?

Mrs Armstrong: I am not sure of all the provincial committees. Again, I have to tell you, because we all have day jobs, that we divide up the volunteer business. Some people are taking care of one part and some people are taking care of another. As for presentations to all the committees, I cannot answer that positively. We can certainly get that answer for you before midafternoon.

The federal government has shown a great deal of interest in the Equality Eve report. In fact, we did have a very small and private meeting with six of our members and Minister Clark, Minister Collins and two of their staff. It was at that meeting that we shared our very serious concerns about women being there.

I will give you an example. When Mr Clark's group, the joint committee, travels across the country hearing from people, somebody has to decide whom they are going to hear from and who is going to sit on the joint committee. With fairness in mind -- we all practise pure democracy, of course -- someone has to be there to say, "It isn't an unimportant event that this small group of women in Prince George, who have been studying these issues for six months, not be heard from." We need someone who is savvy to these situations.

Mr Clark was extremely sympathetic to this position. In fact, he asked our group to help him solve some of these problems and we came away from the meeting feeling there was faith. That is where we stand with that. They have since followed up in a number of ways to make sure we are involved not in a naming fashion, but in a very active fashion. I believe there also has been talk of meeting with the Premier of this province. We have had a message of faith from a number of organizations, so we do feel there is room for people to move.

Mrs Y. O'Neill: I think you must be somewhat proud, as I am, of the contributions of women to the constitutional debate in the second round, both in the Group of 22, indeed in the Northumberland group, and certainly in the presentations to this committee in the last three weeks when we have had what we would consider knowledgeable experts on constitutional matters and economic issues. Women have been very challenging and compelling in their presentations to us in everything from aboriginal issues to the division of powers. I know Mary has her own special message that she will bring, but women have been very much part of that second level of discussion we have taken. If you have not heard the presentations, I am sure you will be interested in reading the Hansard because they have been very interesting.

Mrs Armstrong: Thank you for telling me that.

Mr Harnick: You mentioned that you have some concern with the development of a decentralized Canada. We have heard a number of presentations that indicate the constitutional dilemma will not be solved unless we move towards a decentralized Canada. What generally is the feeling of women and women's groups in the various provinces towards that concept? We have heard a lot of people say: "It's fine to decentralize Canada if you live in a province like Ontario. What happens if you live in Prince Edward Island or Saskatchewan?" What is the feeling there?

Mrs Armstrong: I have to be very honest with you and say that in the Equality Eve reports that came in from 5,000 women, they said to us: "What's going to happen? Tell us so that we know and so that we can speak up." They do not have that information, as I am sure many of your friends and neighbours do not have that information. Women are often in a position where they are asked to come to a table and solve a problem. They come to the table concerned and worried and willing to work to find a solution. They probably do not have that problem at that time, as the 5,000 women in Equality Eve told us. I can tell you, the message that came from women across Canada was: "Tell us what to do. Tell us how to find out how this is going to affect us."

Our booklet is going to deal with that and while it will be public we hope at the end of August, it is looking more like the first week of September. The academic papers that are coming in are basically suggesting that you do need to worry. Even if you live in Ontario, you need to know how these things are going to play out in your house, your child's life, your transportation and job and family. You need information and that is what they have asked us to do and what we were bringing to them. Do you have something to add to that?

Miss Hernandez: Yes. I also belong to the Ontario Coalition of Visible Minority Women, which is a member of the Organization of Immigrant and Visible Minority Women of Canada. I will just mention three things on which the great concern about decentralization focuses. One is the issue of immigration. Would decentralization mean a province can select the immigrants who come to its province? What would this mean in terms of recognizing our commitment to the immigration policy of Canada? The second is, if immigration is decentralized, would that mean a checkerboard effect in terms of social services to immigrants in the different provinces? Another issue is the issue of social services and health care. Decentralization would mean weakening of the universal social programs that we have and then the poor women and women of colour would lose from this effect. We see that decentralization would weaken the universal social programs of this country.

We also see decentralization affecting the education of our children, or education in general. Although we are glad that people are considering taking labour laws on a national scale, we are very concerned when something comes out in the news such as, a member of Parliament in Ottawa mentioning that maybe the training program should be a provincial matter or concern. How would this affect the other women or other people out of jobs in different provinces? Would that mean selective training programs?

Mr Harnick: If it is any consolation to you, I asked some months ago for impact studies the government may have been involved with to tell us what some of those impacts were, such as the economic impact of Quebec separating or the impact of decentralization. I made this request some months ago; I think it was back in March and to this date I still have not seen anything the government has done. To be quite honest, I do not know whether this government has done any of those studies, so the people on this committee are operating in the same vacuum you are operating in. If your booklet can shed some light on it, I hope you send it to us because we do not have much more in terms of those impact studies either.

Miss Hernandez: I think responsibility should also be shared equally because even these studies are being asked of the federal government and we have not received anything yet.

Mr Harnick: I wish they would all cough up the studies they have, or at least admit they do not know.

Mrs Armstrong: I am thinking of Dr Janine Brodie, who is doing one of our academic papers; I sat with her and we were talking about the fact that none of, or most, people are not at all expert on the Constitution. It is very complicated. It was an eyes-glaze-over subject at a dinner party until recently, I think, but if we help people to know what it means to them and put it in their hands so that they can argue, discuss, agree and disagree, we will have a much better document at the end. Janine Brodie sat down and said: "Listen, a Constitution is a tool. It can do this; it can do that." She had my attention. She made me feel I had a better understanding of this piece of paper we are trying to create and that it can work as a blueprint. It is nice to know we are all in this together.


Mr Harnick: Very much so. When your booklet is available, I hope you will make sure we all get a copy of it.

Mrs Armstrong: Absolutely, and then maybe you will pass it along to all the women in Ontario.

Mr Bisson: Speaking personally, we have been at this for about eight or nine months and I certainly do not consider myself an expert on the Constitution either. You are right; a big part of the problem we have in coming to terms with some of the difficulties we have with the Constitution is that it is one of those issues people are not as interested in as others for a number of reasons, and that is good or bad. I guess history will be the judge of that at the end.

You spoke about process. You were sitting down with Mr Clark and Mr Clark identified one of the difficulties he has is making sure he communicates with as many people as possible within our society throughout the country so as not to leave certain people out. I know this has been one of the major works done by this committee, with the co-operation of all members of the committee and the various people involved, as well as possible, trying to make sure you do not miss people along the way. But the reality is that you do, because in order to have a committee large enough to deal with all the people in this province, it would take some of our lifetimes combined.

Seeing that process is the biggest part of what is happening here, and I think that is one of the things we are hearing from most people, the rejection of Meech was not so much that people really had an objection to Meech other than that they did not understand it, and the second part was the process. People felt excluded.

Most governments now are somehow trying to speak to that by having a more open process by which the provinces and the federal government come to their positions and somehow keep people involved. If you had to give us any advice on the question of process, to make sure that when we do come down to zero hour, when we are negotiating the final deal and about to put this thing to bed once and for all, that we do not end up where we were with Meech the last time where somebody comes out and says: "I wasn't consulted. I didn't have anything to say about this, so therefore I want to reject it," what would it be? That was a long question.

Miss Hernandez: First of all, I agree with you that the Constitution appears to be a very difficult document to be understood by a lot of people. I think our role, yours as government and ours as members of the community and community activists, we feel is to really demystify what the Constitution is because the Constitution is a very important law. It affects our lives from birth to death and I think that is one way of doing it: See how the Constitution affects our education system, the immigration policy, the social programs, our health, the way we think and the way we can find recourse if we feel we have been acted upon unjustifiably.

With regard to the outreach to the different women's groups and different groups in this province, it is very important that the government recognize the different coalitions and networks in this province because they have their own groupings, even in small parts or small towns of Ontario. We have done a number of consultations. The previous government and this government have lists of organizations we have submitted to them. I think that is one way of getting into it.

Second, the government should not be afraid to really let the people know it is there because, although there will be some complaints that might come with this constitutional debate or discussion, it is very important to be open and say, "We're here, we'd like to listen and we'd like to make sure you have an input in this Constitution-making." But I think you could really make use of the number of networks and lists we have done. People should not be afraid to consult with groups like our group.

Mr Bisson: But at the end of the process you go through the consultations, I will say such as this committee's, because it is the one I am more familiar with. We have gone through the first part and now we are into the second part of the process, where we are taking the time to sit down and not only listen, but act on some of the recommendations made by various groups out there. But the reality is that at the end not all those groups can come to the table. The table is not big enough. It is physically impossible for a number of reasons.

What do you do? With the Constitution, buying into it is ownership. If all the people in this country at the end can take some ownership and can see something of themselves within this final document, there is no problem with people accepting it. But if people do not take ownership of that Constitution -- and ownership is by being involved -- what do you do at that point? That is the big fear I have.

Mrs Armstrong: I would like to respond to your remarks. I feel exactly as you do about ownership of the document and I do not think that it is a matter of whether they will accept it; they will make it work, because if we feel that we put this together, we will work for it. It is like children if they have ownership for their toys, adults if they have ownership for their job; we all know that those of us who are given ownership for our jobs will do a better job.

But it does come down to will, and when people know there is will to make it happen and will to make it work altogether, then I think that the thousands of groups who want to present can develop a feeling that their interests are being taken care of. For instance, if we do a really good job there will be no need for us at a future date. If people have the will to understand that together we can create a document that will work for all of us, then the special interest groups, the 52% of the population, the people who feel they have got to keep reminding you, will not have to be there. It is sort of like making rules in a family. Once everybody knows what they are and are abiding by the rules, you have to spend a lot less time discussing the rules.

I believe that will is beginning to show itself. Your comittee has certainly shown will, thankfully, over the long time you have been working and now it looks like the federal government perhaps is showing will; and I think that will work.

To finally answer your question, there will be dozens of groups who feel they have been left out of this process who may feel angry. Hopefully, if people know this committee is looking to represent every person in this province, a lot of groups who did not get to be heard will feel that they are being represented.

Mr Curling: You touched a little bit on immigration and it is extremely important. Considering the fact that over the years immigration has been coming to this country, and it is a long time -- I do not want to use the words "trust the government" because the number of immigrants coming here has been reduced as a matter of fact -- do you feel that, with the Constitution being written, there is much more openness to have an immigration policy that will be not only directed at the European market, if you want to call it that, or the European population, but will be much more open to the other parts of the world in which we could get the expertise or get the individuals who are coming here?

There has been a reduction in immigration. People believe that the immigrants coming here are more, when they are far fewer. I think something like 85,000 came in 1990 and in the previous years it was in the region of 135,000. Do you feel that writing this Constitution would see much more openness of getting immigrants from the other regions of the world?

Miss Hernandez: Writing the Constitution would definitely recognize equality in terms of immigration policy into this country. It would also lessen the selective way of how immigrants are coming in because we know that the number of immigration officers in countries like India and, say, the Philippines is the inverse of the number who would like to apply in those countries.

In terms of immigration, we are more concerned about how immigrants are going to be selected if decentralization takes place. I am sure we are all aware of the racist attitudes towards immigrants, and of course this has been found out by certain groups in this country. We feel that, in this aspect, there would be a choice to select immigrants who would be more welcome and who would fit the shade of certain provinces. We are afraid that would happen and create more divisions in this country.

Parallel to that, the services to immigrants coming in will also be hampered because of decentralization. We do not want to see that immigrant services, say, in the province of Ontario are better than the services in Saskatchewan because we feel that immigrants need the best services possible.


Mr Curling: In this field I know immigrants are coming on domestic visas and especially farm workers. Do you think that this should change, that if we accept people coming in as domestics they should not come in as a two-year trial or farm workers should not have to keep on coming -- because they contribute also to the economy -- but we should receive them as full immigrants in this country?

Miss Hernandez: I do not see why, if we are good enough to work, we are not good enough to say. That is the principle domestic workers have been fighting for since 1981 when they had the immigration laws changed so they could apply for immigrant status from within. The principle is: Do we, as Canadians, adopt a policy or a legislation that would put certain workers in a different position than other workers because, as you have said, the domestic workers are forced to live in with their employers and they are very vulnerable in that sense.

In terms of domestic workers, labour laws do not apply the same way. Not all of them benefit from minimum wage in different provinces. I think there are only three or four provinces that apply minimum wage to domestic workers, so we hope in this Constitution we will be seen as workers, not categories of workers, wherein labour laws should apply equally.

Mr G. Wilson: I just want some clarification about the process which really intrigues me. I think you said this first meeting was on February 14. Have there been subsequent meetings to that, or are you waiting for the academic papers that are being drafted?

Second, what was the representation across the country? Was it quite uniform across the provinces and the territories, or are you looking to expand that on a similar model?

Mrs Armstrong: First of all, the representation across the country was very good. We did not hear from as many women in Quebec as we wanted to, but we feel quite strongly that it was a communication problem at the outset. Each group thought the other was handling it. But, in fact, I am associated with the Homemakers' Magazine and Madame au Foyer. Our French edition announced Ève Égalité and we had 50 letters from women saying they were going to have these events at their home. We did not hear back from all of them so that in our report we have to say that there were fewer French women represented than we would have liked. My feeling is that it was a communication problem. If I receive 50 letters from women in Quebec wanting to hold Equality Eve events of 5, 10, 15, 20 women, I feel encouraged that we were well represented.

So having answered that, women from the north, from a lot of native communities, from the west, from small towns, from big cities, Girl Guide groups, one group of senior citizens who were best friends since they were in the first grade -- we heard from women all across the country and the amazing solidarity they showed about needing to be represented, needing to be at the table, was the most important message that we came away with.

There was no doubt that some of them felt more strongly about some of the issues than others, but there was a very loud, clear message from young women and older women in east and west and French and English and north and south and native and multicultural and non-native women who said: "We have something to say. We think we can be part of solving the problem rather than continuing to be part of the problem."

The Acting Chair: Thank you very much for your presentation. We appreciated very much your coming out here and I hope you give our regards also to Norma Scarborough who made the initial attempt to come before the committee.

Miss Hernandez: Thank you.

The committee recessed at 1044.



The Acting Chair: First of all I would like to welcome Professor Patrick Monahan, who is with us today. As you know, the committee has granted you half an hour and I think we can accommodate a little leeway on that. It is good to have you with us. If you could please indicate who you are for the record if you are representing any particular body at this time.

Mr Monahan: Thank you, Mr Chair. I am a professor at Osgoode Hall Law School at York University here in Toronto and I am the director of a research centre that is based at the law school. The centre is called the Centre for Public Law and Public Policy. In that regard, I have left with the clerk, and I believe the clerk has distributed to members of the committee, some general information on a research project we have under way at the research centre. That project consists of a series of background papers which we are in the process of preparing, and there is a list of those background papers which each member of the committee has.

There are two sorts of issues those papers seek to address. The first is, what type of renewed federalism or arrangements for renewed federalism might be in the interests of Ontario and Canadians outside of Quebec? Second, what are the implications, for the rest of Canada, of a decision by Quebec to opt for sovereignty? You will see there, for example, that we have some papers on the legal issues relating to Quebec sovereignty or designing political institutions for the rest of Canada in the event that Quebec secedes from Canada.

So we have some background papers, and we are also preparing a report. We have a group of 15 academics, mainly from York University, who are participating in this project and we are attempting to arrive at some consensus views among ourselves, which is a difficult process. But we are working towards that and are hoping to achieve that some time in the fall; by the end of October is the deadline we have set for ourselves. Of course you get 15 people in a room, or 15 academics in a room, and you are always going to get 1,500 different views on any one topic. That is just by way of background.

I must apologize; I do not have a brief with me. I have reviewed the material and the questions you sent to me and I would like to respond to a couple of the questions you asked. In the next six to eight weeks we will have these background papers and would be very happy to share those with the committee when they are available if the committee would find that of value.

I wanted to address three broad areas in my remarks today. First, I want to talk about the problem of rights and entrenching rights in the Constitution, and particularly about the issue of a social charter entrenching social and economic rights in the Constitution. Second, I would like to talk about the division of powers between the federal and provincial governments. Third, I would like to offer some general reflections on Quebec sovereignty and its implications for Ontario.

Before I do that I just want to make a general comment, having read the material Mr Brown was good enough to send to me. It seems to me, reading the material and looking at the debate generally in Ontario and Canada at the present time, there is a major problem we have and that problem is how to limit the constitutional agenda. If you look at the material you sent me, virtually all the questions are, how can we entrench this right, how can we entrench that right in the Constitution? How can we entrench this principle, how can we entrench that principle? I only make the comment that the more you entrench in the Constitution, the more things you need to entrench. That is, by entrenching things in the Constitution you do not meet the needs, you create more needs.

An example might be the Canada clause. I see in your materials that you have outlined various things that should possibly be included in a Canada clause. I only make the comment that if you wanted to include all those things in the Constitution in the form of a Canada clause, the very next day there would be twice as many groups excluded because they would not have been mentioned, they would have to be included in the Constitution and their demands would be that they had to be included.

For example, you have various languages that are mentioned and that is fine: aboriginal language, Quebec sign language, American sign language, Braille and so on. But then there will, you know, many Italian speakers, there are many people who speak Vietnamese and many who speak other languages, and you can be certain they will all be before you seeking entrenchment of their languages. The problem is trying to contain the process. It is a very difficult problem and I do not have any solution to it. We have learned in our Constitution-making over the last 10 years that each time you try to amend the Constitution, you create new problems that were unintended or unforeseen at that time.

Second, as a general comment, these issues tend to be symbolic and tend to be issues about social recognition. That is fine. That is not necessarily what a Constitution needs to do, however. It seems to me that the more you have symbolic issues on the table, the more difficult those issues are to resolve. My advice to you on all these issues here today is to try to focus on a practical and pragmatic solution to problems. A practical and pragmatic solution is to say: "What is the problem in this area? How can we identify this problem, or how can this problem be identified or explained? And is there a practical way of solving the problem which does not necessarily meet all the demands for symbolic recognition, but perhaps might solve it in a practical way?"


Having made those introductory comments, let me turn to these three areas I want to talk about. First is the entrenchment of rights, and particularly a social charter, which has been discussed as a possibility by various commentators and certain political leaders. It has been not quite clear in some cases what is proposed, but there seems to be some sense that there needs to be some entrenchment of social and economic rights, or perhaps some social programs which we now have should be entrenched in the Constitution. I take it there is a valid complaint here. There is a valid concern driving this.

That concern is reflected in the decision of the Supreme Court of Canada last week and the position of Ontario and other provinces, that is, facing a situation where the federal government announces on budget day, "We're going to be funding this program by this amount, we're going to cut back on this expenditure and we're going to abrogate this agreement unilaterally without discussing it with you." Then the Ontario government has to plan its budget without knowing in advance until federal budget day how much money it is going to be getting from the federal government. This is an intolerable situation for any government in Canada to be in. That is a serious problem.

The question is, is the way to resolve that problem to entrench some kinds of rights in the Constitution to prevent that from happening? I think we can try to find the answer to that by looking to the European experience. They have been working on something called a social charter. I think it is the European experience that in some senses is seen as an analogy and by reference to this European social charter perhaps this can be a model for Canada.

I think it is important to just spend a few moments. I do not know whether the committee has heard discussion of this before, but I want to take just a few minutes to describe what the social charter is in the European Community and then by analogy say how might it be applied to Canada. The European social charter has been motivated by a desire to achieve harmonization in the area of social programs in light of the European Community commitment to a single, integrated market in 1992, and it is motivated by the idea that if you have an integrated market and freedom of labour, for example, people can move from one jurisdiction to another and there is very wide divergence in the social programs or in the laws of these different countries.

For example, if the minimum wage in Germany is the equivalent of $6 Canadian and the minimum wage in Spain is the equivalent of $3 Canadian, you may have a problem first of all because people might feel there is some unfair competition between those jurisdictions. Similarly, if there are social and economic programs in Germany that are very extensive or very generous and there are not very extensive social and economic programs in Spain, then the Germans might be concerned because they might feel there is a migration of people to Germany to take advantage of these more generous programs, comparatively speaking. So there is a recognition that as they move to 1992, somehow they have to harmonize or attempt to harmonize social and economic programs. There is also an idea, which is not an economic idea but an idea of promoting a concept of European citizenship. That idea of promoting European citizenship can be reflected in certain entitlements that are common to all European citizens.

Those two forces are driving this social charter. What the social charter is, essentially, is a declaration of principles, agreed to in December of 1989 by the heads of state of the European Community, talking about the need for equality, equalizing opportunities across the European Community and improving working conditions and living standards. Then this document is referred to the European Commission, which is a kind of civil service arm or branch, which is experts headed by a group of 17 appointed officials responsible for drafting concrete proposals and legislation to give effect to these general principles.

It is not just out there as a general principle. They are actually going to be translated into laws, and the commission drafts a series of specific laws which then go to a council of ministers from the 12 member states. The member states then adopt directives which are binding on the member states mostly by qualified majority. That means by a vote of about nine. It requires a vote of nine of the 12 member states. Just to give you an example of what they are doing, currently they are looking at a directive on pregnancy leave. They are saying, "You shall grant so many weeks" -- currently the proposal is 15 weeks of leave in cases of pregnancy -- "and you shall pay a certain percentage of that person's wage." Another directive is to restrict to 48 hours a week the hours of work for youths aged 16 to 18. You can see that these are quite specific directives.

What is significant about this is that these are then adopted by qualified majority and are binding on the member states, so if the council of ministers, 9 of the 12, vote in favour of pregnancy leave and Great Britain is opposed to this because it does not have any pregnancy leave at all at the present time, it will be bound by that directive. There is no opting out. The concept of opting out is unknown in the European Community. If we were to do the same thing in Canada, the analogy would be that the premiers and the Prime Minister would adopt or pass some general principles which would then be referred to ministers of labour or community and social services or whatever, who would pass laws in meeting as ministers, by vote of 7 or 8 of 10 or 9 in favour, which would be binding on the provinces, even the ones who had voted against.

This tells you, first of all, that it can be confused with a process, because we call it a social charter in Canada, with the Charter of Rights, of course, in which the courts articulate the application of these general norms or how they are to be applied. This is not like that. This is a process whereby political leaders enact legislation of quite specific character. Indeed, it has to be of specific character if it is to have any meaning.

This illustrates, then, the first problem with the idea of entrenching a social charter if it is to be general principles that are going to be enforced by the courts. Why should the courts decide on the issue of pregnancy leave in Ontario? Or why should the courts decide the minimum wage, which is another issue you are going to have to deal with. If you talk about a social charter, rights to adequate income, you are going to have the courts setting minimum wages. It does not seem to make a lot of sense to have the courts setting minimum wages or directing how many hours a week you can work.

The point is that the social charter, while a good idea, would, if we were to adopt it in Canada, involve a willingness by provinces to somehow grant jurisdiction to some national body -- whether a council of ministers or a reformed Senate or some other body -- that would have the power to bind the provinces directly. I happen to think that is something we ought to look at in this country.


I noticed in the Star this morning a report that the federal government is considering some kind of council of the federation. But it seems to me that the council of the federation that is being discussed there, at least from the media reports, is quite different from the European Community, because it does not purport to bind anybody. It simply says that those provinces that do not agree can simply opt out. The council does not have the power to bind those who would not go along with it. So that is the possibility of a social charter. As to how it would be applied in Canada, it seems unlikely that the provinces would ever agree to such a thing, because they are much more anxious to guard their own jurisdiction -- even than the countries of the European Community, who are willing to grant jurisdiction in this way.

It seems to me a different approach is required. In agreements reached between governments, there should be a way of entrenching those agreements in the Constitution. There should be a way of making the agreements binding, of giving them the force of law. That can be done by a process similar to a process which was envisaged in the Meech Lake accord with the immigration agreements. There, a process was set out whereby immigration agreements could be entrenched in the Constitution, have the force of law, and could not be amended unilaterally. That would deal with many of the problems that have been identified, rightly so, in areas of shared-cost programs. I would propose that that seems to me a practical, pragmatic way of dealing with this problem. Whether we are prepared to go for a social charter of the type I described, it seems to me unlikely, but we should at least understand what is involved in that example.

Let me just turn again to the division of powers. There is a conflict between Quebec's demands on the one hand for more power, for decentralization of power, along with a rejection of decentralization of power by the rest of Canada, and on the other hand to maintain the equality of the provinces, with no province can have more powers than any other province. It seems to be a dilemma that is unresolvable.

Just to make some general comments on that, first, Canada is already extremely decentralized. The Allaire committee recommended 22 exclusive powers be given to the provinces, but 21 of those powers are already under exclusive provincial jurisdiction. The only one of the 22 that is not already under provincial jurisdiction is unemployment insurance, and that is only under federal jurisdiction because a specific constitutional amendment transferred it from the provinces to the federal government in 1940.

Secondly, there is a high degree of concurrent jurisdiction, of overlapping of jurisdiction, because most of the activities of contemporary government were not known in 1867. For example, health care is not specifically mentioned in 1867. It now consumes about a third of the provincial budget. The environment was not mentioned in 1867. It was not an area that governments were involved in. So most of the areas governments are involved in today were not even mentioned in 1867, which has permitted both levels of government to intervene in these areas. That means to rewrite division of powers comprehensively would be incredibly complicated. Say you wanted to give the provinces authority over the environment, as Allaire recommends, you would have to create all kinds of exceptions to preserve federal jurisdiction in areas where it was needed or recognized as being necessary. It would be extremely difficult to write those exceptions in a way that was sufficiently precise.

The way to deal with the problem of overlapping or concurrency is, again, to provide for agreements between governments to be entrenched in the Constitution; further, to permit governments to delegate powers through agreement with each other, or to provide for other mechanisms of flexibility, such as to permit provincial laws to be paramount to federal laws in certain areas, as provided for by agreement; and rather than trying to amend sections 91 and 92, to permit agreements to be entrenched in the Constitution which can define the area that is to be affected and provide a mechanism for ensuring the precision that is necessary.

So that could deal with Quebec's demands, if Quebec has demands in certain particular areas. There is already an immigration agreement with Canada and Quebec. There are already agreements with respect to tax collection with Canada and Quebec. These seem to exist without any significant problem to Ontario people.

If Quebec has a particular problem with the labour market in Quebec because there is high unemployment and lack of labour mobility between Quebec and the rest of Canada, then it seems to me that people in Canada would not object if, through some administrative agreement, Quebec was given some additional scope to exercise powers in that particular area.

I would propose in respect to division of powers, provision of constitutional entrenchment of administrative agreements, and the possibility of agreements delegating powers or providing for paramountcy of provincial laws in specified circumstances.

Let me just make a few general comments about Quebec's sovereignty and the implications for the rest of Canada. There has been discussion of the idea of a right to self-determination by Quebec, of a right to secede from Canada. I would simply suggest that from a legal perspective there is no such right in Canadian law. It is possible, I think, to secede from Canada under the amending formula. It would, however, require the agreement of at least seven provinces plus the federal Houses. In fact, I believe it would require the consent of all 10 provinces, plus the federal Houses. But I simply say that there is some room for argument on that point.

Secondly, sovereignty-association of the type proposed by the Parti québécois would also require the consent of at least two thirds of the provinces -- I believe, in fact, would require unanimous consent of the provinces as well as the federal Houses. I think, therefore, the realistic prospect of negotiating secession and/or sovereignty-association would be very difficult under the rules of the Canadian Constitution. It is going to be very difficult to achieve this so-called sovereignty-association. In fact, it seems to me it is not a very realistic possibility.

In any event, the real problem for Ontario and the rest of Canada in the event of Quebec's secession will be, first, our links with the other provinces, and second, our links with the United States. Let me just say that it is difficult to see how the rest of Canada could survive in its present form if Quebec were to leave. There would have to be major restructuring of the remainder of Canada. Ontario would be so dominant within the remaining nine provinces that it would seem necessary to restructure the remaining nine provinces in a significant way, or the national institutions of those provinces in a significant way.

The free trade agreement with respect to the United States will certainly be open to be renegotiated by the Americans if Quebec secedes, because they will be able to argue that there has been a fundamental change in circumstances. It will be, no doubt, the opportunity for the Americans to demand new concessions from the rest of Canada. Without regard to whether you think the FTA is a good deal, the simple point is that you are going to be faced with demands for new concessions once the agreement is opened up. We already are seeing these demands in the context of the Mexico negotiations. Canada as a whole, and Ontario, are going to be in a weaker position vis-à-vis the United States, even though we were already in a weak position in negotiating the FTA in 1988.

It seems to me that secession of Quebec will be a bad situation for Ontario and for the rest of Canada -- a difficult situation indeed, and one which I think is not going to be in the interests of people of this province.

I have spoken perhaps longer than I should have, Mr Chair. Perhaps I could ask if there are any questions.

The Acting Chair: Thank you, professor. It was 25 minutes for the presentation. I think we have roughly four minutes for each of the caucuses. We will begin with Mr Eves.

Mr Eves: I wondered if your group had done any study of, or thought about, the economic impact of Quebec leaving Confederation -- point number one. Point number two, I wondered what your thoughts were, if any, about interprovincial trade.

Mr Monahan: In the context of Quebec?

Mr Eves: We hear a lot, or have heard a lot, over the last few years, months, weeks, days, about the concept of free interprovincial trade which we do not even have within this country. Originally it was supposed to be a reality by 1993. Now it is being proposed that perhaps it could be a reality by 1995. I wondered what your thoughts are on that matter was as well.


Mr Monahan: Let me deal with the second question first. In fact, the complaint about barriers to trade can, I think, be exaggerated, because in many respects -- in most respects -- there is freedom of movement, mobility, freedom of capital, across Canada today. There are obviously some barriers to trade, but most studies of those barriers have said that it is difficult to assess their significance, and they might well be overestimated. But be that as it may, I think there are important symbolic reasons to deal with some of these barriers. That brings me to the comment I made earlier -- if you are going to deal with these problems of barriers to trade in a serious way, what we have found in Canada is that by simply relying on consensus, on spontaneous agreement by all 10 provinces, you are really not going to get very far.

Look at the area of procurement -- government procurement. In 1987, the first ministers' conference agreed to a statement of principles and directed that there be some agreement negotiated. That agreement still has not been signed four years later. Even the agreement being proposed has very large exemptions in it so that its practical effect will probably not be of any great significance.

My sense would be that if we are going to deal seriously with the problem of barriers to trade you are going to have to create some institution that has the power to take binding decisions -- whether it is a reformed Senate, or a council of ministers, or a council of federation such as the federal government apparently is looking at. In other words, you are going to have to create an institution that is going to be able to bind people. That is the lesson of the European experience. The lesson of the European experience is that they have achieved integration by giving up sovereignty to European institutions that actually have power to bind them in the ways that I have described -- for example, requiring them to have common pregnancy-leave provisions.

So if we are really serious about that in this country, it is going to mean the provinces, including this province, the largest one, being willing to give up some of their sovereignty. The provinces jealously guard their jurisdiction in this country and always want to have this right to opt out of anything they do not like. In Europe, the concept of opting out is unknown. So I think that it says there are going to have to be some changes in that way.

As far as the economic consequences of Quebec leaving, it seems to me the economic consequences are going to be a negative. It is obvious that there are going to be negatives. There are going to be significant barriers that will arise over time, I believe, between Quebec and the rest of Canada in terms of trade relationships, because I do not believe that you will have the freedom of mobility that we now have -- it will tend to be restricted.

Over the long term, you have the difficulty of the rest of Canada maintaining itself as a single entity. If that happens, if the rest of Canada starts to disintegrate, that of course brings us even more under the influence of the United States and reduces the ability of Ontario and other provinces to take independent decisions, political and economic decisions.

The Acting Chair: Thank you. I just want to say a word before we move to the next speaker. There are a great many people who want to ask questions. If we could try to be as brief and succinct as possible it would be helpful.

Mr Monahan: That is directed to me, I take it, Mr Chair, and I understand and I note it.

The Acting Chair: No, it is the committee too, Professor. No question about that. Mrs O'Neill.

Mrs Y. O'Neill: Well, thank you so much, Patrick. I do think that you are quite succinct in talking about very complex problems. You may be surprised. I want to go back to some of your opening remarks. I have two questions for you. You said symbolic issues maybe should not be taking a high profile. We have had several people, some of them actually from the province of Quebec, who have said to us that on this round -- and indeed on the last round -- symbolism was much more important than people appreciated, that there has to be some symbolic gesture this time. I do not know how that conflicts with what you are saying. I guess the "distinct society" clause is the big symbol.

Mr Monahan: The problem is exemplified by the material the committee sent to me, which is that the moment you want to put in a symbol to recognize this particular group, society or whatever, you have 25 people or groups lined up right over here and they all have to be recognized as well. The symbolism attached to "distinct society" in the rest of Canada is absolutely negative. I think if we get back into that debate, and indeed that may be necessary, Quebec may say we have got -- and Mr Bourassa is saying, "We have to have this `distinct society' clause."

My only comment is, if that is right, I am not terribly optimistic about our ability to resolve that problem because I think there is such negative symbolism associated with that and the extent of the demands for similar recognition, it seems to me, are infinite. This is just the beginning; this is the first rough draft this committee has here. What I would like to encourage is, rather than exploring the symbolic dimensions of our lives and of all the groups that would like to be recognized in the Constitution, which is not in the end going to make that much difference to the day-to-day lives of people in this province, perhaps we might get somewhere if we try to be a little more focused, pragmatic and practical. But I recognize that the government of Quebec does not seem to be willing to take that approach. I simply say I do not see how the symbolic issues are going to be resolved at this time in Canada.

Mrs Y. O'Neill: A second very short question, and you have already touched upon it. Do you think economic union, which now seems to be getting quite a bit of profile, is possible in Canada?

Mr Monahan: I think we already have an economic union in Canada. It already functions reasonably well. We have a much higher degree of integration than the Europeans do, for example. The Europeans are working towards the type of integration we have in Canada. If we are to go beyond the economic union and deal with issues in terms of provincial barriers to trade or, perhaps as well, federal impediments to free movement of goods and services and capital, it is going to have to be by the provinces being willing to give up some sovereignty to some entity. It remains to be discussed what that entity is. That is the question, is this committee advising the government and the Legislature?

I do not know whether Ontario is prepared to do that; I suspect the other provinces in Canada probably are not prepared to do that. But that illustrates the problem with the Allaire committee report because it talks about the need for an economic union, but at the same time it is saying all these powers should be decentralized and we are going to simply rely on agreement among the provinces to achieve that type of integration. In a comment to Mr Eves, I have already indicated that the European experience and our own experience show us that does not work. We do not get anywhere. It is just endless discussions, briefs, first ministers' conferences, all leading to nothing.

Mr Bisson: You feel it is a mistake to symbolize or give symbols in regard to the whole question of "distinct society," whatever, for Quebec. If somehow or other we do not reconcile that we do not have a country. It is as simple as that.

What I would like you to respond to is that you talked about the inability to really define within a social charter, Canada clause or whatever, some of the rights Canadians feel are being taken away from them now. The reality is that over the past number of years Canadians feel very violated -- I am trying to find the word in English and it does not quite translate -- in regard to some of the things we have lost. We have just seen it in the Supreme Court decision last week and the ramifications of that for this province and other provinces. God only knows where that is going to lead.

It is an erosion of things we fought hard and long for as Canadians from coast to coast to be able to entrench some things. So the real question we have now in regard to where we are going with this is that on the one hand you are saying we cannot symbolize to Quebec in regard to recognizing them as distinct society or whatever it is, and on the other hand you have Canadians who are saying, "Hold it a second, we have another problem here," which is that we see our Canadian institutions being eroded. Those two things are competing against each other and the reality is that if we do not deal with the Quebec question, the rest of it really does not mean anything to a certain extent, because there is nothing left. So what do you do at this point? Unfortunately I do not have enough time.

Mr Monahan: My approach with respect to Quebec is to say: "What are the areas where you require additional jurisdiction to protect your distinct identity and is it possible to identify those areas? Are there 10, 20, 100, 200? Write them out, let's have a list, what are these areas? Don't talk to me about the distinct society yet, we'll talk about that in a minute, but I want to know what these areas are." Then you look at these areas and say, "Well, what are these areas, how many of these areas do you already have the jurisdiction and what actually is the way the jurisdiction is exercised?" and see if we can resolve that.


At the end of the day we may be able to -- we may not be able to -- but if we can resolve that, if we are able to say with the Quebec government, "Now you agree that this granted power would resolve or would deal with your concerns," then maybe it is possible to say, "We can dispense with this idea of this distinct society, whatever that means," because Mr Bourassa was always saying in any event that the "distinct society" clause was there to give him all these powers in Meech Lake. He did not get any new powers; he got the "distinct society" clause.

You say to him, "Well, we'll give you the powers that you need." I perfectly understand that he may say: "It's not good enough. I have to have this symbolic recognition." I am simply saying I am not convinced that is going to be possible. But then you say, "What about these things, that Canadians are being violated?" I agree, they are being violated, and what is being violated is the sense of national institutions, programs, a sense of being Canadian. The answer to that, though, is not to transfer more power to the courts. We have to be very careful in not transferring powers away from elected politicians more to the courts. I guess I would propose that agreements entered into by the federal and provincial governments should be binding and not --

Mr Bisson: I wish the Supreme Court had recognized that last week.

Mr Monahan: That has to be accomplished now through a constitutional amendment, that they are binding and they cannot be unilaterally changed except in accordance with the terms that provide how they shall be changed, so you write into the agreement if you want to change it. I think that is a possible way of dealing with the concerns that arise out of that Supreme Court case last week.

Mr Bisson: I have many other questions, but I will leave it to others.

The Acting Chair: As we have three people who want to speak I will take direction from the committee. I take it we should continue the questioning if everyone approves. Why do we not continue, then, with Mr Harnick?

Mr Harnick: I was interested in your comment that we must contain the process and the idea that the more you entrench, the more needs you create. The difficulty I feel personally in trying to deal with all of the issues before us is there are too many of them. There are too many people who have expectations that this time around their wish list is going to be granted. How do you build a Constitution when you have to do everything at once, as opposed to doing things in a prioritized way?

Mr Monahan: I think the answer is that if you have to do everything at once, the lessons of history tell us you are not going to succeed.

Mr Harnick: That is what I am afraid of.

Mr Monahan: If the demand and the belief is that we are going to resolve everything at once, every problem at the same time and, moreover, that we are going to resolve it through the Constitution, so that we are going to resolve the problem of the environment by writing something in the Constitution, we are going to fail. We are not going to be able to do it. The only way we are going to be able to do it is in some way saying these are the major problems we feel have to be addressed at the present time and it will be up to people such as yourselves, political leaders, to say, "These are the views that we as elected legislators have." The people can vote you out, people can say they do not agree with you. On the other hand, if there is a reasonable attempt to accommodate a reasonable amount of concerns, I think most Canadians are reasonable people, but there are no guarantees of success. One thing you can be sure of, if you try to resolve everything at the same time, you are absolutely not going to succeed.

Mr Harnick: I agree with you if you are going to try to be practical and pragmatic. As a supplementary to that, does the process have to have something built into it, as one witness told us earlier, that would carry on constitutional discussions on a permanent basis, so that those whose problems were not solved this time around know there is a body that is continuing the process?

Mr Monahan: I am of two minds on that, because on the one hand the prospect of a permanent process is perhaps a way of saying that these problems will be addressed at some time in the future, and perhaps that is the attraction of it. The problem is that it means we are constantly going to be immersed in a discussion of our Constitution and short-term political problems, that whatever is in the headlines today is then going to find its way to that constitutional bargaining table. That is what we have seen in this country over the last five years since 1986.

I think it is very problematic to have a permanent body looking at the Constitution unless that body is simply issuing reports and making general recommendations. If we are seriously going to be amending our Constitution on a permanent basis, I think it is going to cause more problems than it is going to solve.

Mr McClelland: Mr Monahan, Mr Bisson mentioned something I would like to try to pursue a little bit further. You talked about the concept of having a binding agreement. I wonder if you could draw on your knowledge of the European experience and the model with respect to answering a question that comes to my mind. To what extent do you think it is feasible or possible that you could actually have a binding agreement without a right of appeal? Does it not seem inevitable that some aggrieved party is going to find some hook?

If you have a social charter sitting off to one side, then it is somehow linked constitutionally by reference to the Constitution, and at the end of the day somebody is going to put forth an argument that will have that matter you suggest is binding as between the provinces brought into litigation and determination by the court. What mechanism is there, if any, for one of the parties to an agreement if they feel aggrieved?

Second, if I can get them both on the table right now, to the extent that you see a North American economy probably inevitable -- whether we agree or disagree we will probably move to a North American economy and even more so internationally over the next few years -- to what extent do you think we are going to be driven economically rather than politically and socially in forcing ourselves to resolve some of these issues in terms of a charter that provides some sort of homogeneity across Canada and indeed North America?

I see the two as being linked. If you are talking about moving things into a social charter and articulating the number of ideals that ought to be met and some uniformity across countries, certainly that will spill over into North America and then have impact and perhaps linkages with Europe -- the first one in terms of the mechanics of enforcement and, second, the impact on an economic-driven agenda.

Mr Monahan: Make no mistake about it, the goal of the social charter program in the European Community is ultimately going to be enforceable laws that you could go to court to enforce, but the point is that the laws are written by legislators, in this case the council of ministers. They decide whether the pregnancy leave is going to be 15 weeks, 10 weeks, 25 weeks, or whatever. It is not up to the courts. You do not say the court is going to pick a number out of the air. The ministers, the political authorities, decide this is the law, but then it is enforceable in the normal way.

The way it becomes enforceable is that each member of the community has to enact as part of its domestic law the European-wide standard and they can be compelled to do that. Then that becomes part of the domestic law of each country, and a citizen who wants to have entitlement to pregnancy leave in the United Kingdom, or whatever, can go to court in the normal way. It is important that there be enforcement.


If we are going to have a social charter, and I think there is merit to the idea, we have to understand that what we are talking about is articulating laws, passing laws by some political authority, not by the courts, that can then be binding, so that average citizens, ordinary citizens, can have access to the courts. That is important because it does preserve something that Mr Bisson talked about, which is the idea of national citizenship. If we had such a mechanism in Canada, it would promote a sense of national citizenship, because as Canadians there would be certain things we are entitled to. That is the power of medicare. It is something that is an entitlement across the country, but in order to get to that, we have to create some new institutions. Simply giving it to the courts is not going to get us anywhere.

As for the North American, I am not sure I understand the question about how we resolve these issues. I am not sure I got the question.

Mr McClelland: I was probably trying to throw too much out there at one time. Mr Eves mentioned the economic impact of the potential separation of Quebec or fragmentation of Canada. My sense is that we are going to see a change in North America, and indeed globally, that we probably cannot even begin to contemplate. I am wondering to what extent your research has indicated that there will be an economic imperative, if you will, that will supersede the political-social engine that would compel us to resolve and hold things together in this country, if the rapidity of change and the things that are taking place, both in a North American context and indeed globally, are such that you see that as something that can be marshalled to drive us or force us to really rethink our position with respect to one another in holding our country together.

Mr Monahan: I think I understand a bit better what you are saying now. I think there are economic imperatives. There is no law that says people have to invest in Ontario. If Ontario is not a stable jurisdiction, if Ontario becomes unstable, then people will not invest here and we will all be worse off. But I do not think you can keep a country together by threats or by the idea that if you do not stay together the sky will fall. I do not think that is a way, a basis, for keeping a country together like that and I do not think Canadians will choose to do that. There has to be some basis for us agreeing on some principles, or whatever, and you cannot keep a country together by fear of economic doom.

Mr McClelland: I just want to simply say that is good news to hear from you, because there is a sentiment prevalent that says, "It's okay, we're going to be forced to hang together anyway." Thanks for those comments.

Ms Carter: You started off, I think, by saying what we would all probably agree, that we do not want Quebec to secede, but on the other hand we do not want too much generalized decentralization. You brought in the concept of what is happening in Europe as a way to avoid this. It seems to me, first of all, you have a problem convincing some of the provinces that this is the way to go. How would we do that? Second, if you are relying on -- you mentioned a 9-out-of-12 type of majority of the ministers' group that you have. Supposing, for example, that Quebec was always in the three that disagreed or tended to be in that three a larger number of times, maybe, than some of the other provinces, would that not mean we would be back to square one and there would be restlessness and Quebec would be unhappy and so on all over again? Is there a way we could overcome that?

Mr Monahan: I think that is the fundamental problem we face in Canada; that is, the provinces, not only Quebec but other provinces, are not willing to give up any of their jurisdiction, their so-called sovereignty. They are even less willing to do so than they are in the European Community. So all this talk about how we are going to use Europe as a model -- in fact, I am doubtful, if you look at the European experience, that provinces in Canada would be willing to do this. All right?

Taking that as my starting point, let us look at some very practical, limited possible changes of the nature I have described and the nature of administrative agreements to transfer powers, agreements permitting agreements to delegate powers, permitting agreements to provide for the paramountcy of provincial laws in certain circumstances to be specified in the agreement. Those are limited changes and I am saying it may be possible to respond to Quebec's demands for more power through these types of mechanisms without offending the feeling about the equality of the provinces that is very strongly held outside Quebec. But I agree with you that in this country the idea that provinces would give some sovereignty to some national or supranational body is probably not something the provinces are going to want to do.

Ms Carter: Mr McClelland, I think, was quite rightly bringing in the question that economics is maybe more of a deciding factor than constitutional manoeuvring might be in the long run. I would just like to bring in the question of the environment. I think if we do not look to that, and quickly, and do something very definite here and encourage people elsewhere to do it, we are going to find that we do not have the basis on which to meet all these ideal situations we would like to have.

Mr Monahan: But the answer surely is that we solve the problem of the environment not by writing about it in our Constitution but by committing ourselves, through law and as a society, to dealing with these problems. Writing about them in the Constitution is not going to solve the problem of the environment.

The Acting Chair: Thank you very much, Professor, for being here. I am glad we took the extra time to question you and to receive the wisdom you have to offer us today on the issues around the Constitution. I hope that if there is any more information you or your colleagues have written, you could forward that to the committee at the earliest possible date. We will certainly try to move through that material to help us in the final report we will be writing.

Mr Monahan: I will do so, Mr Chair, and I appreciate the opportunity to address the committee today.

The Acting Chair: Before we adjourn, I would like to say two things about the agenda. The first thing is that Professor Mahoney from Edmonton indicated to us that she would rather meet the members of the committee who will be travelling out west than travel here to Toronto, because of time constraints on her behalf, so she is not going to be on tomorrow at 11:30. The members of our committee who are going to Edmonton in our travels west will meet with her. In addition, tomorrow at 2 pm, Professor Julius Grey is to be added to the list of people presenting deputations.

I remind the subcommittee members that we are going to have a brief subcommittee meeting right now.

The committee adjourned at 1158.