Thursday 22 August 1991

C. E. S. Franks

Mary Eberts

Ontario Coalition Against Poverty

Travel arrangements


Acting Chair: Drainville, Dennis (Victoria-Haliburton 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)


Marland, Margaret (Mississauga South PC) for Mr Eves

Ruprecht, Tony (Parkdale 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

Clerk pro tem: Carrozza, Franco


Kaye, Philip, Research Officer, Legislative Research Service

Wakefield, Ted, Research Officer, Legislative Research Service

The committee met at 1005 in room 151.


The Acting Chair (Mr Drainville): I would like to welcome the people of Ontario who are watching the hearings here in Toronto of the select committee on Ontario in Confederation. These are important days for us as we begin to look at the future of this country and to listen to all the views, values and themes the people of Ontario have been bringing to this committee.

I would also like to thank Professor Franks for coming here today to present to us some of his views on the future of Ontario in Confederation. Professor, we have allotted around half an hour. If you could leave some time for questions and answers, that would be appreciated.

Dr Franks: Thank you very much, Mr Chairman. I am from Queen's University and I do not represent an interest group in particular. As a person who studies Canadian politics, I have written on parliamentary government in Canada, I have written about native self-government, I have written about bilingualism and biculturalism and I have written about dissent and about white-water canoeing. I will not be talking about white-water canoeing today.

The Acting Chair: But I can see the parallels.

Dr Franks: Well, we are in dangerous waters and we have to avoid the shoals and the rocks, that is for sure, and not get swamped as we go on.

What I am going to do is introduce some thoughts on the Constitution to you. They relate very much to the outline of the issues you are interested in. I am not going to talk extensively about reform of the federal parliamentary institutions, either the House of Commons or the Senate, but I would welcome questions on them if there are things the members are working on. I am at present working on a study for the federal government on free votes in the House of Commons and, as I say, I have written a fair amount about Parliament, so I am happy to talk about that. But I do want to raise some other questions that, to my mind, are more general issues about the Constitution and about Ontario's place in the Constitution and in Canada and its role in the Constitution amending process.

The first thing I want to do is to make it very clear that I believe constitutions should be short documents expressing general principles and should not be long, detailed documents. Constitutions are not legislation; they are something different. They are more abstract sorts of documents that express the most general principles and the fundamental things in a society, in particular the relationships between people and government and the process through which people's views get expressed in government.

Having said that, I think we have a problem in Canada because there is a tendency to want to put too much in a Constitution. I must say when I looked at the list of topics that were covered in the briefing materials your clerk sent me, I thought there was a strong risk that this committee might wind up recommending more in the Constitution than I believe should be there. I emphasize that because there is a feeling that if you put something in the Constitution, then it is guaranteed, ensured. That is simply not correct. Whatever goes into a Constitution has to be redefined into working principles of government and policies and programs.


To my mind, the question of whether something should be in the Constitution depends largely on how you want the general principles to be resolved into working programs of government. To make it very simple and crude, and not totally accurate, putting things in the Constitution gives additional power to the courts and the judges to make the decision and takes away from the powers of legislators and legislative assemblies and elected politicians to make the decisions. My view is that, apart from the most general principles of expressing human liberties and human rights, the role of the courts should be reduced and small and the role of the elected officials and politicians should be larger.

Having said that, I believe that things like positive rights -- rights to employment, rights to education, rights to pensions, rights to medical care and so on -- should not be expressed in the Constitution. They should be expressed through legislation and they should be parts of a government program. I know there is a feeling that if you put these things in a Constitution, you guarantee them, but it simply does not work that way. The courts are quite likely to restrict principles like that very narrowly, and what you wind up doing is leaving the decisions on these fundamental political issues to judges who are neither elected nor necessarily representative. They come from one of the most conservative professions in Canada and tend to represent those views with a very strong view in favour of property in their judgements.

We now have enough work done on judicial decision-making in Canada to appreciate that judges do not always reflect the intentions of legislators or the interests of the public generally, nor are they always consistent one with another, nor are they always totally impartial. It matters a great deal which judges hear a case. There can be severe problems in an overloaded court system. I am afraid that if the Constitution gets amended to include, for example, everything that is suggested in the brief, you would overload the court system. I think it would bring the courts into more difficulty and more disrepute than they are at present. I think that as legislators you would be abdicating some of your responsibilities.

I think one of the reasons why the political processes in Canada are in disrepute is that politicians, generally speaking, are not doing their job of creating the kinds of programs that are needed in Canada. We are fussing more about the Constitution and doing less about the kinds of policies needed to govern the country. I say that with a fair amount of experience in government one way or the other. My first job was working for the Co-operative Commonwealth Federation government in Saskatchewan in the early 1960s, when medicare was introduced. I know very well that an active, socially responsible, reform-minded government can make major changes, not just in a province, but ones that affect the whole of Canada. Well, I have said that and I will stop on it.

The next point I want to make is about the amending formula. It seems to me we have a real conflict in Canada because we have one of the most rigid amending formulas of any Constitution that I know, and combined with that we have a desire to put everything in the formula, including things that might well be changed from time to time, and getting very specific on some issues. I would like to see the amending formula loosened up. I think the Beaudoin committee of the federal Parliament and its proposals, which are very much like the Victoria formula, are on the right track. We need to have a regional emphasis in the amending formula and get away from a right of veto to every single province. We now know that a veto can be exercised not only by a province, but one member of one assembly can, in effect, prevent a province from making a decision. I do not think we should have the country held up to ransom by such a small minority.

Amending formulas, like most other aspects of the legislative and constitutional amending processes, are balances between majorities and minorities. I think in Canada, and in our amending formula in particular, we have gone too far in giving minorities a right of veto and not far enough in allowing the majority to express its views.

I am going to skip over a lot I would like to say. The last comments I want to make are dealing with the fairly general issue of culture, multiculturalism and biculturalism, etc, in the Constitution. There are different ways of looking at Canada, different ways of dividing it into groups and different ways of expressing political views. I am going to suggest four different ones here and I will deal basically with two of them.

One is multiculturalism. We do recognize that in our Constitution at present. We recognize that there are many different groups and nationalities and languages and backgrounds that make up Canada and that they add to a richness and variety and that these groups need some recognition; that it needs to be stated very clearly that we do not live in a country in which those of English heritage or French heritage dominate the others; that we all share together and live together and have to create our society out of the extraordinary complex mix we have. That is one form of looking at Canada that needs and does have representation.

The second one is 10 provinces. I do not think I need too much emphasis on that. The basis of executive federalism, the basis of constitutional amendments, is provincial, and the basic distribution of powers is provincial, but I do not want to suggest that is the essential way of looking at Canada. It just happens to be a very powerful one.

A third way of looking at it is as regions. The amending formula that was proposed by Beaudoin and the Victoria charter emphasizes regional representation rather than provincial. I happen to believe that is an appropriate way to go.

The final one I want to talk about is dualism. By dualism I mean what our Québécois compatriots would call the English and French aspects, the two founding nations, or whatever you want to call it. It seems to me that our present constitutional crisis comes from the difficulty we have had in coming to terms with dualism in Canada. There are many different ways that dualism can be recognized. One way would be hypothetically to say that Quebec represents the French elements of Canada and the other provinces represent the others or, as many people in Quebec would say, the federal Parliament represents English Canada and the National Assembly represents French Canada. That is one way of looking at it.

The efforts that were made on bilingualism in the federal government over the last 30 years have been to argue that dualism can be represented in federal institutions. Prime Minister Trudeau, of course, was one of the best examples of living, operating dualism, bilingualism and biculturalism, as is Prime Minister Mulroney at present. Another way of recognizing dualism is to have it recognized in the provincial sphere. New Brunswick is the main one that has formally recognized it provincially. Historically the Northwest Territories, including what are now Manitoba, Alberta and Saskatchewan, was officially recognized in the Constitution as bilingual, although that disappeared over 100 years ago.

I want to suggest there are ways Ontario can recognize dualism which I think are essential, or very important anyway, for the future of Canada. To do that I want to step back for a minute and look at the question of culture, multiculturalism and biculturalism. I want to suggest to you there is a difference in the meaning of culture in the term "multiculturalism" as opposed to "biculturalism." There is no suggestion in the idea of multiculturalism that the various ethnic groups in Canada, the immigrant groups, the recent immigrants and the not-so-recent, should have official representation, say, of Ukrainian or Italian or Greek or Portuguese or Cantonese or Hindi or Urdu in the Constitution and that these should be working languages of government at the level of an assembly or working languages in the national or provincial businesses. The idea of multiculturalism is more an acceptance of the importance of these groups to Canada and of their rights to use their languages in their social and ethnic institutions, in their homes and preservation of parts of their culture.


Culture in the bicultural sense, referring to English and French Canada, means something very different. It means that French is a major working language, a dominant language for substantial portions of the population and that English there would be a second language, and so would the other languages involved in multiculturalism. We have a tendency, and I think it is erroneous, to equate the role of French in Canada with the role of the other languages. I am not speaking about native Canadians because that is a different issue. We can talk about that if you want, but French is the living, working language, the home language, the totality of the linguistic experience for a significant part of Canada and I think that needs to be recognized in our Constitution and it has to be recognized by the various provinces in Canada.

I want to suggest that Ontario has a particularly important role in recognizing it. The reasons are many: that Ontario numerically speaking has the largest French minority of any province in Canada; that Ontario and Quebec are the major provinces in Canada, the heart of Canada; that Ontario and Quebec historically combined to create Canada and we are the major parts of the original Canada; that French and English in Canada and Upper and Lower Canada have been recognized as official languages since 1840 and that one of the first acts of the Legislature of the united Canadas, was to go against Lord Durham's recommendations and accept French as equal with English in the Canadas. That is the foundation of the partnership of the two languages in a political institution.

What I would like to propose as an end thought here is that we in Ontario should recognize dualism. I would like to suggest that over the last 20 years the government of Ontario has increasingly been doing that. The majority of its services are provided in both languages; both languages can be used in the assembly and many places in the courts; the school system is recognizing dualism and I think the time has come for Ontario to state that it is officially bilingual.

I do not think that is a major step in terms of cost. It is an enormous step in terms of symbolic importance and I think it is a more important way of saying that we in Ontario recognize Quebec and Quebec aspirations as legitimate within Canada; that we recognize French as legitimate within Canada; that we appreciate the fact of the two official languages and we want it to continue and that we want to support Quebec in its desire for linguistic and cultural strength. As I say, this is something Ontario can do by itself. It does not need constitutional amendment. I suggest it is the most important single step this committee, the Ontario government and Ontario Legislature could take towards affirming our belief in a united Canada. Thank you.

Mrs Y. O'Neill: Thank you so much for your presentation and for all the work you have done in this area. I have a two-pronged question, but it deals with representation. First, would you make a comment on one of the proposals before us from some aboriginal groups, about guaranteed representation at various levels in government. Second, Mr Clark is now starting to give us some hints of what is in there, and very strong indications that an elected Senate is in there. Would the one E satisfy enough people without the second E?

Dr Franks: Those are very interesting questions. I am quite sympathetic to the idea of representation of the native people in special constituencies. That is not unusual. In the Indian Parliament there are special seats in Lok Sabha, for example, for Anglo-Indians and in the New Zealand assembly there are special seats for Maoris. There are two problems with this in Canada. One is that the range of cultures and language within our native populations are much more diverse than within the non-native population -- I mean extreme diversity; they are far more diverse than the rest of us. The question is, how do you represent them, how do you aggregate that diversity? I am not sure we have a good answer to it.

The question is, who votes and who does not? As I understand it in New Zealand the definition of a Maori for electoral purposes is anybody who is a Maori, thinks he or she is a Maori, or wants to be a Maori. I do not think we could use that as a definition of native in Canada, but think of how many definitions there are. There is the legal definition of status versus non-status, and there is a list with people who are natives and who are not. There is the group called Metis or non-status Indians, which is a fairly large proportion. It might be twice as big as those who are considered status. At present, there are many tribes and bands in Canada that have band lists which have more people on them, or fewer depending on the band, than the official government list; and so you run into problems of who are included and who are not. I do not think they are insurmountable, but they are real problems. I think that is a good idea, I support it. Ontario could do that by itself too if it wanted. I think it would be a great idea.

On the question of the elected Senate, I am old-fashioned in not being terribly much in favour of an elected Senate. I think one elected House is enough. I know a lot of people do not agree with me on that. I do not mind it; I could live with an elected Senate. I can see an effective Senate if effectiveness is limited in the way suggested by many of the proposals -- say, the suspensive veto on bills; in other words, a six-month hoist or whatever and forcing the House of Commons to reaffirm its support of a bill before it gets through. I think the powers of the Senate must be drastically curtailed from what they are at present if it is elected, because at present it has virtually the same powers as the House of Commons and I think that is very wrong.

The equality one I have some trouble with because I think the basis for Senate representation should be regional, not provincial. The provinces are perfectly adequately represented in Canada through executive federalism and federal-provincial relations and I do not think the provinces need power but I think the regions do. Again, having said that, the next question we have to ask is, how is dualism represented officially in the federal Parliament? That raises a question about the Senate issue. I do not think it has been properly addressed yet.

Mrs Mathyssen: Professor Franks, you said you were concerned about enshrining too much into the Constitution because of the legal battles that would ensue. Yet in light of last week's Supreme Court decision about capping funding for social programs, is there not a need to make sure that the rights of Canadians to those social programs are guaranteed? You remember the old "sacred trust," are we not in danger of losing our right to health care, education, and social benefits if we do not enshrine them?

Dr Franks: I do not believe that at all, I think it is quite the opposite. There is a very high risk that if you put them in the Constitution -- remember they are going to be put in very abstract forms. I do not know how long the legislation on medicare is but my guess is that if you looked at the Ontario and federal bills combined, you would have well over 100 pages of legislation. What you would look at in the Constitution is a sentence or so. The courts would have to define what that sentence means. I think there is a much more likely risk of a government not very sympathetic to these programs tossing it back to the courts if it were in the Constitution, and the courts construing that very narrowly and then the government saying, "Well then, we are perfectly entitled to do what we are doing," as has happened on capping. That is a much greater risk of harming these intentions than to have them expressed in legislation and having the political will to keep that legislation in place and amended. I think that is true for a large number of these things. There is an illusion that if you put them in the Constitution then they are preserved. But what I am trying to say is that the real issue here in any of these things is to translate our ideals about humanity, human liberty and human spirit, and what we want to do with humanity, into government programs.


The question we have to ask is, what role does the political process have as opposed to the judicial processes? My argument is that the political processes should be paramount here. One of the reasons I think Canadian politics is so lively is that we have different ideologies expressed, in that we have an NDP ideology which is probably social democrat, a Liberal ideology which is a mixture of social democrat cum more market-emphasis, and we have a Conservative ideology which is very strongly at present market oriented, although in the past it has had a red Tory element which has a social commitment to it more than I see in some Conservatives at present.

Putting it another way, it seems to me that the way you preserve a view of how these abstract principles should be represented in government programs is through political action, through creating political parties, through expressing your intentions and your ideals. It seems to me that by saying you are going to put them in the Constitution, that the judges are going to do it, what you are doing as politicians is abdicating a large amount of responsibility. As I say, there are problems in Canada now because of the disrepute the political processes are in and I think you are just going to contribute to that more because you are telling the courts to do things they are not appropriately designed to do.

I would say, just as a corollary, that if Ontario goes into the debates on the Constitution with a long wish list, a shopping basket full of things it wants in the Constitution and then says: "We're not going to participate. We're not going to agree on anything unless we get our entire wish list in," there any many provincial governments that are not going to want those, and it is not only going to prevent anything useful from happening on the Constitution, it is also going to bring politics into more disrepute, because I think the most unappetizing aspect of politics to the average Canadian is watching 10 provincial premiers and the federal Prime Minister haggle -- I would not want to say "like a bunch of monkeys over a coconut" -- in trying to decide what they want to do with the Constitution. It is one of the most demeaning spectacles, and I think there is a very strong risk that if Ontario goes into those meetings with a large shopping basket, not only is it going to be frustrated but the process itself is going to be even worse for you generally than if you looked for a lean and mean Constitution, and relied on politics and your own political skills to push forward the social programs and the things on which there is profound disagreement between parties.

Mr Harnick: I am impressed with the way you articulate the need for a constitutional document to be short, a document containing general principles. The difficulty we have, because of the way this process has meandered along for so many years, is that more and more people have indicated that they have a stake in what this Constitution is going to say, and more and more people believe that their interest has to be solved at the same time as all the other interests. It is no longer a question of where the priorities are and what problems you have to solve first. It appears that everything has to be done immediately, which generally conflicts with what your theme is. I like your theme; I would love to be able to follow that theme. How do you do it when you have got so many people with such great expectations?

Dr Franks: At some point politics is about making decisions and when you make decisions you have to identify what comes first, what comes second, and what comes third. This committee is part of that decision-making process. I would suggest to this committee that what comes first in the Constitution is ensuring that we have a Canada; the first step in ensuring we have a Canada is to recognize dualism and do it effectively. I suggest that, as I said before, there are some things Ontario can do by itself without going to the constitutional table, which I think would be extremely important.

What you have to do is say that the things that come second and third -- the second and third things, to my mind, come after we accept that there is a country, after we accept that there is a process of representation through federal institutions and provinces that give us a political system that operates and can make decisions. The next thing is to ask what kinds of political decisions and goals we want to express through legislation and through government programs. I would recommend that they do not go into the Constitution. We say: "Fine, we agree these things are very important. Now let's sort them out either at the provinicial level through provincial politics and legislation or at the federal level where needed or through federal-provincial negotiations where those are needed."

I think, in other words, that you have to identify what comes first and then say the other ones are the ones we are going to work out through politics. I emphasize that if you try to make a fat constitution with everything in it, and keep the amending formula the way it is, you are going to wind up with a lot of problems. One, it is not going to happen and, two, in the absolutely unlikely event that it does happen, you are going to wind up with a lot of things in the Constitution that might want changing over the years and you are not going to be able to change them.

I am certain that ours is the only Constitution in the world that has wood chips in it, but maybe some day people will not want wood chips in it. Now we would need the consent of seven provinces to get wood chips out of the Constitution.

Look at some of the other things you might well wind up putting in that want changing. I think it is a very dangerous path to take, and what I am trying to say is that somebody has to say, "First things first." I think this is one of the jobs of your committee.

The Acting Chair: That is all the time we have for questions. I thank you very much for coming before us, professor, and for giving us your insights on the Constitution and the future of Confederation. If you have any documentation that you think would be helpful to this committee, I hope you would get that to us so we could look at that.


The Acting Chair: Mary Eberts is next. I welcome you to the select committee. You that you have about 30 minutes, but because there is no one after you I think we have some flexibility with time in terms of questioning.

Ms Eberts: My name is Mary Eberts. I am a lawyer from the city of Toronto. My origins are in small-town Ontario, probably like many of you. As a young person growing up in small-town Ontario I had the opportunity one way or another to become reasonably fluent in French and to spend some time in Quebec.

Like many women of my generation I have been active in constitutional lobbying for over 10 years now. I fear I have to say "lobbying," because women are so seldom included in the main functions of government deliberations on the Constitution. I think I can say a lot of that lobbying has been done in conjunction with Quebec women and, again, like many women of my generation who have interested themselves in the Constitution and in women's voluntary work in very many sectors, I am profoundly interested in Canada staying together and profoundly interested in our using our collective ingenuity to discover a solution for keeping Quebec in Confederation. Most of the national women's groups in 1987 to 1990 when the Meech Lake accord was being discussed made this point again and again, but it was often obscured in the other debate that was going on.


I think from our own experience as equality seekers and as people who have tried to have their interests accommodated in the structure of government, many women are very sympathetic to the idea of what we call an asymmetrical solution to the structural problems of Confederation. It is not lost on us that our Supreme Court has said that often equality requires difference in treatment and we see that perhaps giving Quebec equality and the equal chance to realize its own aspirations may require some asymmetry of treatment in our constitutional arrangements.

I believe many of the reservations women had about the Meech Lake accord arose because the Meech Lake accord did not recognize the principle of asymmetry. It proposed to treat all provinces in the same way and that arrangement, as we saw it, would exercise too great a centrifugal force on the central institutions of Canada that are essential to the well being of women, other equality seekers and many disadvantaged people who need them in order to maintain a simple and dignified life.

I find myself speaking today by invitation to a parliamentary committee on constitutional reform for, I think, the sixth time in the past 10 years. By my reckoning, at half an hour apiece, that is about three hours that I have had a chance to speak of "the woman" in an official forum about the future of my country in 10 years. I can safely tell you that nothing I have said in these official forums in the last 10 years has had an impact, and not content to limit myself to the formal occasions upon which my views are solicited, I have, like many women, put them forward on many occasions in lobbying activities.

Aside from some achievements in 1980 and 1981, I am sad to say that all those countless hours of lobbying have had very little effect. After a while one begins to suspect one is asked to some of these gatherings -- not yours of course -- simply so the people who are organizing them can point to having consulted with women.

I am encouraged by your interim report and your commitment to including women individually, collectively and as constitutional experts in the next stage of our work. I am also encouraged by the formal and open commitment of this government to employment equity and I suppose the combination of those two things means that in addition to asking a lot of women to come as volunteers to your committees, you also have a whole cadre of real women-centred women academics and lawyers busily working away on Ontario's constitutional position as civil servants and as advisers to government. I expect soon to be greeted by the public revelation of the identities of those women who are working to establish the formal constitutional position of this government.

I also expect, given your formal commitment to equity and to consultation, that this government is investing a fair amount of money in community outreach and development so minority groups, equality seekers and others who have a social or educational or other agenda that is very well formed can be assisted to translate that agenda into constitutional terms. Again, I expect the announcements of those provisions will be made shortly, as I have seen none of them so far.

The last time I came before an Ontario committee studying the Meech Lake accord that was, I expressed considerable annoyance with the exclusion of women from constitutional process. From my perspective, nothing has changed. There are now more committees, so that women who are interested in the Constitution have to take more time off work to allow their views to be harvested by officialdom, but women and other equality seekers are still as excluded from the process as ever they were. But this exclusion and my recognition of its recurrence has caused me to think more deeply about what is actually going on here. I know in your invitation to me you asked me if I would talk about process, so here I am.

Women and other equality seekers, like many who appear before constitutional committees, are clamouring to be allowed into the constitutional process, but I believe that clamour and the knocking on the door of those engaged in the constitutional process is to some extent a surrogate activity. The process of constitutional reform is a stand-in for something else. It is a stand-in for the whole political system.

Our democracy, as you doubtless have heard before, is profoundly unrepresentative. Our principles of democratic government -- the ones we learn in our introductory political science courses in first-year university -- tell us we have representative government because cabinets are chosen from those with the majority of the seats in an elected Legislature and the principle of cabinet and government responsibility to the Legislature is in operation. However, I think the events of the past 10 years or so and the advent of a charter-democracy has acquainted us with other groups who now realize they are unrepresented in the political process.

We have, since women have begun to celebrate each year the "persons" case, had it drawn quite apparently to our attention that women may have become persons by reason of a decision of the House of Lords in 1930, but women and other minorities did not in Canada finish getting the vote until the 1950s and the 1960s. That is only 30 years ago that the franchise was extended to most people. Disabled people are still working in the courts to get the franchise.

The political institutions, the bureaucracy and the organizations of the economy, are profoundly unrepresentative of women and minorities. The only people who are really represented in elective government and in the bureaucracy in our country today are able-bodied white males who speak English and who speak French and whose origins are, for the most part, English and French. These men dominate the parliamentary system, the bureaucratic system, the political system and the economic system, just as they dominate the making of these kinds of decisions around the world.

Given our near total exclusion from all of these, I cannot be surprised that women told you at your first set of hearings about their concern about low incomes, absence of health and social services and violence against them. Women suffer these harms because we have little or no power in our households and in our society to stop them. The fact that there is a women's movement at all to come and address you, when so many women have to struggle against such odds for survival and dignity, is a miracle.

Well, what to do about this from a process point of view? We are told the country is in crisis. We know the country is in crisis, that it may break apart if a rapid timetable of constitutional change is not adhered to. Social change affecting women and other equality seekers takes a long time, we are told. Attitudes must change. We must prepare the ground. We must move public opinion. Let's have a few more royal commissions.

Now, royal commissions are not to find out if there is a problem. We all know there is a problem. The royal commission would not have been appointed if it had not been obvious to us that there is a problem. The royal commission fulfils a peculiar function in the Canadian democracy. It is there to assemble the incontrovertible scientific proof of the problem, in our case how women are treated, that is necessary before the huge burden of proof that women must meet can be satisfied. There is to be no social change in our society unless an almost insurmountable burden of proof can be met by those who ask that change come about.

You all know the experience in Ontario of the Social Assistance Review Committee. Everybody knows there are poor people in Ontario and they suffer. Nobody has to document that for us to know that, but that committee had to get together and to work to prepare the evidence that would meet the insurmountable burden of proof. That burden of proof remains virtually to this day unmet. There is little social change for those people even now.

We are told we have to work to a very tight timetable to make fundamental constitutional change before the country will decide if it will create the condition that will afford women and other equality-seeking minorities greater participation in democratic structures and the simple social, economic and legal conditions that allow them to lead simple and dignified lives without being gunned down in our classrooms or on our streets or shot in our beds or our workplaces by our spouses and our "lovers." I use that term in quotes.


If all the harm that is happening to women on a year-in and year-out basis were grouped together into one month so that the suffering and the carnage could be irresistibly seen, men might realize that women are in crisis too, and that the conditions for our crises are created and re-created daily by a political and a social structure that excludes us from real power-sharing.

This brings me to the Constitution. What is the Constitution but a document that outlines how power will be shared in our society? Traditionally we have seen the Constitution as a document that outlines how power will be shared by governments, all of them run by men. The last time around a little chink was made in this armour. Some power was shared with ordinary people. That was done through the charter. That is why so many people in this country value the charter so highly. It is the first time anything official ever entrenched in the Constitution gave them rights on a large scale.

There had been small attempts before for some people in the country, some minority language rights, some educational rights; but not across the country, only in certain parts of it. That is why the charter has iconic value to many people, because it is the first time that a person's right against government and against exclusion by government has ever been recognized.

What is happening now? Our Constitutions so far have been made by Fathers of Confederation and they talk about how men who run governments will share out the power. The same process is being repeated before our very eyes. A new configuration of power sharing in our society is being prepared now behind doors that are closed to most women, most equality seekers, most minorities, and by people who are not really aware of their interests.

I know legislators are involved in this process. They are involved in the public side of it. My quarrel is really not with legislators, not with the ordinary MP or MPP, because, as I said in my presentation on the Meech Lake accord, I believe that the institutions of executive federalism exclude MPs and MPPs from this process almost as much as they exclude ordinary people.

There is a good example going on even now. More legislators of course have become involved in the process of constitutional change since the debacle of Meech because that is the lesson that governments thought they learned: Get more committees out harvesting more views. But while legislators are busy harvesting views and writing reports that will go to bureaucrats and to the people who will sit down at the table, there is a small group of people in Seattle negotiating what is really the power-sharing document for the next 10, 15, 25 or 50 years of our future, and that is the new version of the free trade agreement. Those negotiations are going on behind doors that are closed to legislators and where the main interest to be served at the table is how to make North America and Central America a happy home for international capital. So legislators are just as excluded from the making of documents that talk about where power will lie and how it will be distributed in our society as are people. Not that legislators are not people, but you know what I mean.

All of these concerns make me say that concern about process should of course translate into concern about substance. I want to try now to put some substance to the proposals that are coming on to the constitutional table. I am going to take my cue for this from a Supreme Court of Canada judgement under the charter. It is the judgement about the Saskatchewan election boundaries. It dealt with the meaning of the right to vote and to hold elected office or stand for elected office in the Canadian democracy.

The majority decision of the court talked about the meaning of that right to vote under the charter. As happened in the Meech Lake accord, the courts interpreting the charter are actually ahead of the people who are running these discussions. People who were setting up the Meech Lake discussions did not realize that the courts had already, at that time, recognized the constitutional stake of equality seekers. They missed that, to their great discredit, just as now the charter and interpretation of the charter has pushed the debate further even than those now running the process in this new round seem to be ready to acknowledge.

In the Saskatchewan election boundaries case the court said, "The concerns which Chief Justice Dickson in Oakes associated with a free and democratic society, respect for the inherent dignity of the human person, commitment to social justice and equality, respect for cultural and group identity and faith in social and political institutions which enhance the participation of individuals in society are better met by an electoral system that focuses on" -- and here is the magic phrase -- "effective representation than by one that focuses on mathematical parity. Respect for individual dignity and social equality mandate that citizens' votes not be unduly debased or diluted," -- here is another significant phrase -- "but the need to recognize cultural and group identity and to enhance the participation of individuals in the electoral process and society requires that other concerns also be accommodated."

They took a clear stand against the principle of one person, one vote in the way it fed through to the design of electoral boundaries and said instead that the design of electoral boundaries had to accommodate cultural and group identity and be there to enhance the participations of individuals in the electoral process. This they called effective representation.

I believe that the principle of effective representation should be embodied in Canada's basic constitutional documents. It is not now there unless you can see the beginnings of it in this decision. How do we do that? How do we put something in the Constitution that will embody effective representation?

Unlike your previous speaker I am not in favour of a totally lean and mean constitutional document. I believe it can include something more than a basic articulation of a one- or two-line principle. I believe that Canadian constitutions always have done that. There were in the British North America Act provisions about who is going to vote in the Algoma district as well as all these wood chips that the previous speaker was talking about. I think if you go back to look at some of the other basic constitutional documents we like and if we get the unedited version of those, we will see that constitutional documents have always been concerned with the concrete and the particular.

The Magna Carta, when you look at an unedited version, had quite a lot of provisions in it, not just about wood chips but about loads of wood and about the free passage of loads of wood over land that was held by certain royal or noble land owners, because free passage of loads of wood had enormous economic importance. Those were not edifying, those principles, and they do not often make it into the boiled-down versions of Magna Carta that people hang on their office walls, but they were there. So I do not have any hesitation in talking about putting things in a basic constitutional document.

What I would stress, however, is that there must be provisions for the enforcement of things that are in basic constitutional documents. We already see in the charter, which was intended to be enforced by individuals against government, great difficulty because the courts are taking a very narrow interpretation of how to enforce basic constitutional guarantees. Their approach to remedies seems to be very narrow.

There are provisions in the Constitution Act of 1982, particularly those of section 36 which talk about regional equity and social programs, that do not have any enforcement provisions at all. If there are provisions in the Constitution that address this issue of effective representativeness of government, then I believe they must have good enforcement provisions in them.

I have been speaking informally with some friends and colleagues about what might enhance the representativeness of our Constitution and I put forward a few proposals. They probably will not meet with your approval right away, but as I mentioned at the beginning, I am used to that.


I believe that genuinely representative government for women and men of all races and ethnicity must be a basic tenet included in the Constitution, however it is configured, and the guarantee must affect the elected House of Commons, the elected Senate -- if it is made elected -- the legislatures of all the provinces, federal courts and tribunals, provincial courts and tribunals, and the public service of all the units of our government.

I believe there should be a basic guarantee of proportional representation for women and that included in it and working with it there should be a basic guarantee of proportional representation along racial and visible minority lines that would include aboriginal people.

These basic guarantees should not simply occupy a small corner of the seats that are available in legislatures. Too often the pattern of equity or affirmative action is: Segregate a few seats or a few opportunities over here and let women and visible minorities and disabled people sort of squabble over who gets them. Meanwhile, white males will dominate all the rest. That is a very inappropriate model. I think if we would divide them, first of all, proportionately as to men and women in the population and then make sure that both the men's side and the women's side, if you will, reflect adequately the representation of visible minorities and aboriginal people in our country, we may be getting somewhere. That is from top to bottom; from elected officials through government through all appointments. Only then will we have effective representation in government.

What else? In light of the recent cap decision of the Supreme Court of Canada, I believe there should be a principle in the Constitution that stresses clear federal responsibility to fund to an acceptable level of social assistance and income support, including social services to the disadvantaged, health, training, research and post-secondary education. By an acceptable level, I mean a level of national standards determined in a open forum made up of all levels of government with substantial consultations with user groups; not just service delivery groups, user groups: poor people, students, people who use these services.

In view of the free trade negotiations in the first US round and in the present round and in view of the great difficulty we have had enforcing in this country obligations in the human rights area that Canada has undertaken in the international community, I believe that our Constitution should include, for Canadians domestically, a constitutional right to have our governments abide by international conventions we have signed. That is a constitutional right that would be enforceable by Canadians against Canadian governments and not depend on reports that are made in international forums.

I believe as well that there should be a constitutional obligation on our governments not to take on international obligations if they will result in disadvantage to women and other vulnerable minorities in Canada or internationally and that the enforcement mechanism for this constitutional obligation should include an obligation to make a full and open revelation of the government's views of the probable consequences of any such obligation before it is undertaken and an opportunity for public discussion and debate and a method of national review of those obligations.

We signed the free trade agreement without allowing ourselves as a nation the same review and cooling-off period that provincial governments afford to people buying pots and pans on their doorsteps. That seems to me to be an errant exercise of unrepresentative government. We may need to enhance, in our basic constitutional document, access to the training and education that will enable participation in productive labour. We see that particularly emerging as the result of what happened as the sequel of the last free trade agreement, where during the negotiations it was said that people can be retrained to absorb the impact of this agreement and then no training opportunities were forthcoming.

It may be that we will need to have rights in the legal system for victims, not just people who are suspected or demonstrated of crime. That is, our legal system does not seem to afford to the victims of crime enough purchase to be taken seriously.

We may also need access to basic subsistence that makes the right to life in our Constitution more than a gleam in someone's eye. I say "may" because there are already cases before the courts testing the limits of the existing charter guarantees, and we do not know yet whether they will result in a successful outcome.

We also need in our country, to ensure the economic survival of the most fragile and those who are the most impacted by international developments, the complete removal of all barriers, direct and indirect, to the movement of persons, goods and services from province to province so that when someone trains as an optician or a nurse or a welder in one province, that person can if economic necessity requires it move to another province without having to go through agonizing testing and retraining.

Those are my proposals. They are made in the context of affirmation, as I said at the beginning about a recognition of Quebec's aspirations; and I add these other elements, which some speakers may say are not priority elements now, because this round of constitutional discussion is likely to settle a lot of things for a long time to come. We will not have another such crisis-driven round for many decades. If some of these basic restructuring activities in favour of those now excluded from representative government are not undertaken now, we will enter the 21st century with an underclass of women and minorities still vested in our Constitution.

The Acting Chair: You have certainly touched on a great many areas, and I thank you for doing that. We will begin with Mrs Mathyssen.

Mrs Mathyssen: I would like to say it is a great pleasure to meet you, and I want to thank you for your very profound presentation. I was a schoolteacher for a number of years, and one of the things I learned was that no matter how eloquently, how precisely you state something, people do not hear it until they are ready to hear it. I hope we are ready to hear it.

There have been some concerns about the narrow interpretation by the Supreme Court of charter rights. I am wondering, is there a remedy to make that court more representative? Can we get around that by having a more representative Supreme Court?

Ms Eberts: The proposal I have put forward today about representativeness in institutions would include all federally appointed courts and tribunals. I think the Ontario government in recent years has taken great initiatives towards making its own provincial courts more representative and has demonstrated that it is possible to do so and that embarking on this process will attract very high-quality candidates to the bench. Concerns about quality, I think, need not deter us from having that sort of approach. I would like to see the approach that has been demonstrated here so successfully, applied across the board.

Mrs Marland: Ms Eberts, it is a privilege to hear you this morning. I have certainly known of you by reputation, and your reputation is phenomenal. I really have been admiring all your work and all the compassion that you have shown in your practice for many years. Interesting to hear you talk this morning about the exclusion of MPPs like ordinary people. I was encouraged to hear that because last week APEC told us that we were liars, and I am encouraged to know that you believe we are ordinary people trying to do a job.

Thinking back over some of the history you were tracing, I could not help but think perhaps of a federal commission -- I am older than you are, but perhaps we both might remember -- the Judy LaMarsh $4-million commission into the influence of violence in TV and media. When we think through to, I think it was 1975, the first International Women's Year, that was also the year when I was a trustee on the Peel board and Margaret Wright was shot in the classroom in the Brampton Centennial Secondary School along with some other students. I remember what an effect that had on me as a woman, an elected person. My empathy was with you this morning when you were somewhat emotional about that aspect of our lives as women and our commitment to serve as representatives of people, not just representatives of women.

I am the mother of a daughter who parks in an underground garage on a daily basis, and my daughter Ruth really is representative of a lot of women and their lack of choice day by day. When you talk about enshrining women's rights, which I agree with totally, I am still wondering how enshrining those rights in a Constitution is going to protect my daughter in that underground garage for the next number of decades, because our progress has been so slow in the last few decades. Since having it in the Constitution would only be the beginning, what I would like to ask you is do you think that, combined with your suggestion of guaranteed representation, proportional representation in government would expedite a solution to the problem? We have certainly heard about guaranteed representation for our aboriginal Canadians, and I would like to hear from you if I can really be encouraged by that being a solution -- I know in the long term -- but in the short term?


Ms Eberts: I like to talk about effective representation in this context, and talk about it not just with respect to women but with respect to women and minorities. I think one of the problems you mentioned, the underground garages, for example, is the result of the brains of those who have not been concerned being applied to urban design and the design of buildings. Also, it is a resource problem because it is not economically feasible to have a lot of people patrolling downstairs. Both men and women are killed underground. I am not saying that effective representation will answer this, but I think it is more likely that a government constituted that way would have different rules in its building code, for example.

When we talk about people being shot, and you speak as a mother, I cannot help but think of the black mothers in the housing projects and in the major cities who wonder when their sons go out whether they are going to get a phone call saying that they have been shot because they happen to be black and driving a car on a freeway. I think that a police commission and a police force that was more representative or governed and directed by a more representative group might in the long run not have those attitudes.

I do not think the fact that it is going to take a long time to make these changes is a reason not to start them now and not to start them in a major way. If we let this opportunity go by, it may not come again, and we will be back into royal commission land. I have a lot of respect for royal commissions and have used their research often to effect change or to work for change, but they are not the only answer.

Mrs Marland: Would you agree that a lot of royal commissions have come forward with a lot of very good recommendations -- and I am speaking particularly in respect to women -- and they have never been acted on? That is the frustration I feel.

Ms Eberts: This comes back to the political will the previous speaker was speaking about. Political will does not exist in a vacuum and it does not hover over the political system like an incandescent spirit. Political will comes from individuals who are in the political process and who are pushing the political process. If you get more people into the political process who have these agendas, then the political will will be there. A government that has as its primary aim or its primary political will the service of the international movement of capital will not be as concerned about this as a government that has a real social agenda, whatever the political party may be.

Mr Curling: I had quite a few questions to ask you, but I think time will not allow me, neither will the Chairman allow me to give you that time, having other people coming forward.

I was going to express, in the context of some people that I am hearing from daily, that the great faith one should have in the rewriting of this new Constitution will reflect them, and that some people hitch their hope on a certain line or phrase and say that, having placed that in the Constitution, we are fully protected. I presume the blacks in Nova Scotia who cannot get into a bar because of their colour realize it does not matter what is in a constitution. The hope they have for what will be expressed in the Constitution, and the limited amount of people coming forward into this committee is indicative of the kind of things they are wishing for.

I feel that putting a lot in the Constitution will not be very helpful compared with legislation, an enforcement of certain rights on the level of, say, provincial legislation, and hoping, of course, that the court will rule. I feel that courts only interpret. I get the impression we feel that courts are the ones that will rule, and that courts interpret the law as they see it.

My question is specifically on employment equity, since you mention that. Many people see employment equity as women's rights, so therefore other rights of employment are put in the Constitution. Then they are seen as a struggle for women, and furthermore of white women. If their hope is based on the Constitution, do you feel there is further hope for those people who seek employment equity -- and the governments have been very, very slow in bringing about employment equity -- whether waiting for it to take place in the Constitution would raise their hopes more?

Ms Eberts: This is complicated, there are several questions in there. Let me see if I can answer them all.

With respect to the issue of concentrating more on provincial legislation and enforcement, instead of putting rights into the Constitution, I suppose I am greedy in my isolated exclusion from power. I think it is very useful to try to do both, and this stems from my belief that people who have been excluded from making governing decisions, benefit best in a situation where they can take advantage of the conflict of countervailing power. This has happened traditionally when excluded groups have played off the federal government against the provincial to get social welfare programs. It has happened at the federal level, where one political party has played off against another to enhance social welfare benefits. It has happened both in Canada and in the United States in the interplay between the courts and the legislatures, that the court's articulated principle: If we like it, we can push governments to implement it; if we do not like it, we can push governments to change it. I think always we have to keep an eye on the countervail and in maintaining these countervailing structures.

I think as far as employment equity is concerned that it is a very welcome development, and I think our present Constitution mandates that employment equity measures not just benefit the white women that you mention, but benefit all groups who have been excluded. What I think has been happening over the past few years as employment equity efforts have been trying to get off the ground is that those who have been designing them or people who have been thinking of them, have thought, "We will allocate a small number of positions for employment equity, then we will make people fight over them, and we will keep all the rest for ourselves." Real employment equity would make available a generous number of positions so that the excluded and the historically excluded, would not have to fight among themselves. All the positions would come from people who have, historically, kept them to themselves, regardless of their merit. That is the way I would prefer to see that going.

It sometimes comes as a shock in the women's movement, as a white woman, to be told that we must share our power with others and with visible minority women. My first response is, what power? I have come, over the years, to realize that -- from a different vantage point -- what we have looks like a lot of power. I and the organizations in which I work are happy to share such power as others perceive us as having, because it is only by sharing what we have that we will be able to benefit everyone.


Mr Curling: I want to follow this up in a very domestic way to show you what power white woman should share with other women. When the wage and price freeze came about, people on the lowest strata who were very much visible-minority women could not get an increase. What happened around the nation was that secretaries and so on were upgraded to executive assistants to their bosses. The jobs that changed were white women's jobs. Sharing of power would have meant those white women speaking out to say, "That is an injustice, although I benefit from it." I think there is a consciousness there. Even writing those things in the Constitution will not embrace those people -- it will not, in itself. Even when we change the police laws, it will not stop the policeman from shooting.

I have two daughters who, of course, are black, who I worry about each night, because they drive. Do they feel protected -- they are Canadians -- do they drive feeling Canadian? Do they have the fear of being women, the fear of being black? I still feel that even though we put it in the Constitution, and everyone is struggling to entrench everything in the Constitution, I think the pecking order will come: Those who have money will be addressed through the courts and their rights will be asserted. Do you feel strongly that the emphasis then should be placed on legislation, or trying to get all those things in the Constitution as a symbol?

Ms Eberts: It is a difficult question. I think that having things in the Constitution does have a powerful symbolic value. Where we run into difficulty is where we cannot get all we want in the Constitution, so that the people who hold the power choose for us what will have symbolic value. It is often not what the community would have taken as its first choice.

I do not think that getting things into the Constitution is the end of the game. I was very active in 1980-81 getting equality guarantees into the Constitution, and very active setting up LEAF. LEAF is to do litigation, to bring about an effective implementation of constitutional rights. LEAF has, within the past year, formally adopted what we call a diversification policy in order to make ourselves develop our consciousness about how, as middle-class white women, we are unconsciously excluding black women from what we do and how we set our agenda, so that we have a much more open and inclusive agenda-setting process, or are working towards it. That is very difficult on all sides. It has been difficult for black women to make us do that, and they have shown a lot of courage to bring to our attention what we have not been doing.

It has been very difficult for white women, who sense themselves excluded from power, to say, "You are right, we have got to do this differently." But I hope that if we do this right within the women's movement, we will become a place where there is a lot of experience about how to do it right everywhere. I am very encouraged, first of all, about being made to try, and I hope I am out of the stage where I was made to try. Now I am very enthusiastic about trying, because I see that is the only way to have any hope for the future, to go beyond the formal and into the real sharing of power.

Mr Harnick: A very quick question, but a difficult answer, I suspect. I know LEAF has been very proactive in terms of using the charter, litigating, demanding answers and seeking a pattern of how the charter is going to work over time. You really have not had much opportunity to talk about the charter today. I know your experience with it is probably more vast than most litigators. What do you see as any glaring weaknesses in the charter that we should be addressing?

Ms Eberts: This question is both an attractive and a dangerous one for me, because when I am not a charter litigator, I am a charter lobbyist. It took us such a lot of time and trouble to get the guarantees we now have into the charter that I am very reluctant to open it up again. I would like to see the charter left where it is and things put in the rest of the Constitution.

I have been exploring recently the idea of strengthening some of the guarantees I have talked about: the rights of victims in the criminal process and also a basic right to life and subsistence. Those cases are working their way through the system now. It may be that some remedial work is necessary if the outcome of those cases is not positive towards those rights.

There has been a fair amount of discussion in some circles about the idea of including a social charter in the Constitution. I think it would repay looking at what has happened around the politics of a social charter in England. A number of us have been active trying to get a combination of a charter as we know it and a social charter as entrenched in the British Constitution. The Major government has just introduced what it calls the citizen's charter. It actually has a fair number of quite right-wing features to it. It would allow, for example, actions by citizens against trade unions that resulted in the trains running slowly, so it is a way of turning grass-roots actions through the courts against collective or trade union action. I am not passing any comment on the trade union situation in Great Britain, but this whole area is one that I would approach with great caution -- not just opening up the charter but also exploring the social charter.

My last word on it is that whatever guarantees we have, whether by way of improving the charter or adding social guarantees to the Constitution, we must be very clear in the basic document about how they are to be enforced. Otherwise they will amount to nothing, or they could be used against the people whom they are intended to benefit. It is very difficult, for example, for people with slender means to have access to the courts to enforce their charter guarantees. That is why we have LEAF. That is why there are several organizations now that have sprung up to do litigation in the multicultural community, the disabled community and so on, because unless you pool your resources and get lots of volunteer help, you cannot go to court. It is difficult. This is why I concentrate as well on the political side of making the institutions of government more representative. I do not think you can do everything by way of a charter. It is made to carry too heavy a load if it is the only game in town.

Mr Harnick: We have heard many witnesses who believe in a social charter but at the same time believe that the enforcement of a social charter should not be left to the courts. I personally agree with that because I do not think the courts want to be in a position of interpreting a government's social policy. One concern I would have is that a social charter starts us on a process of concentrating on collective rights and forgetting about the rights of individuals. My concern is that if a constitution has a social charter, I would be concerned that it lessens the import of individual rights and the actual charter that we now have. I wonder if you could comment on that.


Ms Eberts: I think this is a very interesting area on which there should be a lot more work in academic circles. I think our concept of individual rights has sprung from the growth of the liberal democracies in the 19th century and earlier in the 18th century. When you look at it, the concept of individual rights that they knew was actually articulated within an envelope where only white male Europeans with a certain level of income had any rights at all. Individuals were considered as the holders or recipients or beneficiaries of individual rights only if they belonged to a group. Because that group occupied all the positions of power in the society, it was not seen as a group. Its rights were not seen as the rights of a collective -- they were seen as the rights of men, with a capital M. The fact that they were European white men of a certain age, at one point, and a certain economic status, just passed into the mists of history.

One of the things that has been happening in the academy in the last 25 years is that all that stuff is being unearthed and put into context. That means we have to go back and look at all of our notions of individual rights, which are important but have to be looked at in the context that they are individual rights that grew up for a certain group of people. If you read Rousseau, you will see he was talking about a certain group of people. Most of the 18th and 19th century philosophers were all Europeans and the only way they talked about people who did not live in Europe was as the romanticized or degraded concept of the savage. Now people are beginning to recognize it for what it was. They did not include women at all. So that is where we get our philosophy of individual rights.

It is very difficult, without a lot of careful thought, to figure out how that fits in with the new collective rights. I am encouraged by the work that is going on now, but more and more has to go on so that we can merge those two concepts where they deserve to be merged. I am not so in favour of collective rights that I believe the individual should have no rights against the state. I believe it is important for the individual to have rights against the state, but I do not believe that the individual should have rights that are so supreme that they allow that individual to inflict harm on others without any chance of being curbed.

The Acting Chair: I want to thank you very much for your comments to the committee today. Your passionate advocacy has been worthwhile to hear. For me as the Chair, it has been helpful to have you challenge us, both as legislators and as people who are part of a system that has shown itself unwilling to take seriously at times the needs and aspirations of all people in society.


The Acting Chair: The next presenter is Mr David Kidd. I am glad that you have been able to come before the committee and talk about some of the concerns of your organization, the Ontario Coalition Against Poverty. Our time is about half an hour. If you could leave a substantial amount of time for questions and answers, that would be very helpful.

Mr Kidd: It depends on your questions. I probably will not be taking much of your time. We in the antipoverty movement have spent some time on this matter, but I am afraid most of our work generally is the bread and butter of surviving day to day -- that is our primary concern. Constitutional matters are important, but we have not spent as much time discussing our presentation as on other matters.

I am before you representing the Ontario Coalition Against Poverty. We represent not only 14 communities across Ontario but also 10 organizations right here in Metro. The basic position of our organization is that we feel the first business of Ontario is eradication of hunger, homelessness and poverty.

One of the comments we would like to make right off the bat is that we feel what must be done around the Constitution is a concept of democratizing the Constitution. This is a word that is thrown around a lot these days, not only in political, but in local circles; but as a group that represents a group that does not feel it has much democracy day to day, we really feel that has to be done. I just want to emphasize that.

We would like to start with a comment or two about particularly important groups that we are a part of. First we would like to declare our support for the right of self-determination of the first nations, and we hope this constitutional committee will support that. We do not consider it is just a question of Ontario's boundaries. The first nations' boundaries are a little bit wider than that, but we would like to declare that first. We have native organizations within our ranks.

Our second point of reference is that we would like to be very clear and forthright in the right of self-determination of Quebec and the people of Quebec. We feel that is somehow being hedged on in most of the constitutional issues. People are trying to skirt that in new forms of federation and new ways of discussing the rights of francophones. Right here in this city, after the Hurons and the Mississaugas, francophones and Québécois were here first. We feel there has to be a method and a means for the people of Quebec to decide their future.

Now we talk about what we feel as ourselves, as Canadians. As Canadians, we reject the idea that the rest of us are seen as a tenth of a part of the current puzzle, and that therefore other programs and social services should be deflected down to the various provinces, given people's reference to the community of Quebec. We feel very strongly that universality and other forms of protecting social services and other programs still have to be applied within Canada. We reject any form of breaking these down to provincial jurisdictions. We have been lucky here with the situation in the last decade -- but we are only too well aware of what is happening in other provinces across the country with the reinstitution of "workfare" and other forms of abuse to people who are poor.

There are a number of rights we would like to register as our concerns. I know other people have talked about this and it came up in one of the questions for the previous witness. One that we feel is very important to register is constitutional rights. If you feel that it must go under a social charter, so be it, but we feel economic rights are as important as the right to vote. I am afraid it is not seen in this way. It is still seen as the kind of thing, "Well, let's talk about it in the pages of the newspaper or within constitutional discussions," but every day in Ontario there are people who are denied the right to a job, the right to a living income, the right to a decent place to live, the right to appropriate health care and the right to a decent education. We see these five as economic rights even though you may not see housing and education in that way. Currently they are only seen in relationship to your access to a dollar, and we just want to make it very clear we see those as fundamental rights of all Ontarians and they have to be protected.

We would also like to remind you, as you have gotten a deputation, I believe, from one of our sister organizations from Sarnia, that Canada and Ontario both signed the International Covenant on Economic, Social and Cultural Rights from the UN, and we would like to hope that you would live up to that, which basically also substantiates and supports a number of these economic rights we have mentioned.

The other area of rights we would like to mention is that of political rights. I am afraid these are not always mentioned because often people are under an illusion -- and it is easy to feel that illusion, given the situation of political rights throughout the rest of the planet -- but let us be clear that within the confines of our so-called democracy, not all our citizens are given the right to organize, vote and express themselves in the same manner that others are. In terms of the right to organize, there are still difficulties for some groups in communities in forming trade unions, and hopefully some of these items will be coming up in other areas. Social assistance recipients are often blocked from forming their own organizations. Tenants are often blocked. We would just like to make it clear that we feel the right to organize has got to be a principle.


Access to information is becoming a much more important part of people's democratic rights. Currently, as it was revealed many years ago by the Kent commission, the federal commission on the media, or others, we have a growing monopoly within the media and a lessening degree of access of minority and poor Canadians to the media. We would like the Constitution at least to call for improved public access to the media. This is outside the Constitution debate, but we see that it is possible only through broadening public media, broadening access to public media, not going the way that currently is happening, which is privatizing it. Currently, we feel, within the discussion that takes place every day, the lives of poor Canadians are under-represented. To give you an example, we have recently witnessed the editor of one of the media outlets waging a campaign against welfare recipients. I will not refer to her in these hearings, but she was able to pursue lies within the media, and we do not have equal access to challenge her within that setting. Basically, she could print those stories every day.

Last, and this is something a number of us are fairly clear on, there still is not universal suffrage within Ontario. Homeless people are still not guaranteed the right to vote in the province of Ontario, let alone within municipalities. I am afraid elections and democracy as we know them are still based on property rights; that is, whether you have a place to stay. We would like to say clearly and finally that we hope the Constitution would at least establish universal suffrage in the 1990s.

In terms of democratic rights, I am afraid we still feel the other aspect of elections is that you can give people the right to vote, but then there is the right to choose who the candidates are, and the majority of candidates generally are those who have the greatest amount of money. Again, this is outside the realm of this constitutional hearing, but we would rather see tighter spending controls allowing other groups in society to stand and actually give their positions a chance to be heard.

One other area of special rights we would like to mention, before I conclude, is that we feel there are certain groups within our society that deserve special rights, due to oppression or discrimination that they have received, and we are considering it special because we would like to see that reversed. This is not in any order of prioritization. At this point we see all four of these groups -- and there are others -- but we would like to specify that women, communities of colour, disabled people, and gays and lesbians at least have rights against discrimination, violence and hate propaganda, and we would like to see them have established rights to equal access to all services, resources and political institutions. These are groups that have been denied this access historically, and we feel they should be specified as special groups today to bring them up to standard. As you can see, for one example, there are municipalities passing the buck even about denying gay and lesbian spouses access to equal rights. Basically they are waiting for the provincial legislation to take a stand as opposed to giving leadership. We would like to see another form of political protocol enforced.

I am sure you have heard this from other people, but for us who are literally engaged in it -- the majority of our membership is literally into daily survival modes of activity -- we would just like to make a couple of references: that constitutions are important, we would like to emphasize that, but they can also just be pieces of paper. We would like to see a Constitution that would not only protect and establish these rights we have mentioned, but we also need to see action from this Legislature in carrying out the programs, enacting legislation and giving leadership in the elimination of poverty.

Currently, we find that the federal government is playing a constitutional tune with its BMW sound system while the rest of Canada is burning, in particular due to its actions in promoting privatization, the dismantling of social services, contracting out and what they have called "free trade." It is free for them, but Canadians, literally and figuratively, are paying the cost of free trade in terms of our rights and institutions that are dismantled. We would like to see noble constitutions and the words they are based on followed up with noble deeds. I will stop there. There are many other comments we would like to make but, in terms of my organization, these have been the areas we have agreed to comment on today. Thank you very much for your time.

Mrs Y. O'Neill: You made a statement about franchise rights for homeless people. My understanding is that this is in the implementation stages for the 1991 municipal election. I am sure you are aware of that. Can you tell us how you feel that is going to be implemented? You would be much more conscious of the snags or pitfalls we could get into there. I am sure you would like to be hopeful that it would be enforced as widely and broadly as possible, as I am. Could you tell us a little about the franchise for the homeless?

Mr Kidd: We have been able to work out arrangements in the last number of elections, but then it really only comes down to those of us who have made enough noise. We have been able to work out methods and means to allow people we work with to get enfranchised, but first of all that has to be enshrined because everybody is looking for leadership from the various levels of government to ensure that this is a right.

In terms of how that is done, again, this is just like any other service and I understand that. Then the election officers themselves have to understand what the process is, because there still is an amount of education that would have to be done about what it means. I am afraid that just the situation of homeless people is misunderstood. In Metro alone I would guesstimate that there are almost 200,000 who are underhoused who may not ever come up when you file to be a voter. You may be living illegally --

Mrs Y. O'Neill: The enumeration process.

Mr Kidd: The enumeration process may miss 200,000 people in Metro alone.

Mrs Y. O'Neill: I would be surprised if that is not a modest number. More so, I think, in the 1987 election than in the 1990 election, I felt there were many, many people in my riding who did not reach the polls. In fact, on some days there were as many as 60 people standing in line to get put on the voters' list. Now that is in a riding that is quite stable. Mind you, there is a lot of subsidized housing in my riding, but I am thinking that with homeless people, how much greater will be the need to educate and explain rights. It is a great concern to me that the system is so complex for voting.

Mr Kidd: Yes. I just want to bring the other area to your attention, because people mostly think of the dramatic homeless, that is, those who are literally staying on the street. I just want to bring to mind, particularly to those of you who have ridings across the province, that there are the underground homeless who people do not realize are sharing with family or friends and who basically do not have the economic supports. If they did not have the family or friends, they would literally be on the street. They are the ones who are also not in the downtown core of Metro. I know we have been able to reach, not everybody who lives under a bridge, but at least a lot of the people who have been staying in hostels, to acquaint them with the system. There are means and methods to do that, because a lot of them are reached through municipal social services, in terms of hostels or so forth.

We have been crying for a long time that place of residence can be established in terms of where you receive your mail, because a lot of homeless people still receive mail, unbelievably. Libraries have been doing that for years, if you can bring in a piece of mail with your name and address on it, regardless of whether or not you have ID. That is a whole other issue that we will not get into here. One of the basic problems of all homeless people is that they lose their ID. It is literally capital. Either they lose it because they have no security of their possessions or it is stolen. It is often a difficulty. I just wanted to include the other group because, in terms of the homeless question, most people only think of the graphic illustrations of downtown Metro and the people who literally sleep outside. They are not aware of the rural homeless or those who are literally sleeping and sharing, and that is a larger number than has ever been calculated.

Mrs Y. O'Neill: Thank you for explaining that to the Ontario public this morning. I am sure you have first-hand knowledge. I think it is an item that all of us in legislative positions and people like yourself have got to continue to take as a very serious responsibility.


Mr White: The issue of homelessness, I think, is interesting. Of course, the right to vote was originally predicated on having a residence. We seem to be following the same practice. It is the residence by which one is enumerated. Rental of residence and total lack of residence, are degrees of poverty and also degrees of enfranchisement in our community, unfortunately. But those basic issues, how to deal with them, it really strikes me, in terms of the issues you are bringing up, that what we are dealing with is, how do we accommodate people who have been traditionally impoverished, disadvantaged, to rules that are set up essentially to augment, to help, to fit the rules of the well-to-do, the powerful, the resourceful. That is one of the main concerns I have with including social and economic rights, and how those are included in a constitution.

I believe the present history with the charter is that people who have used the court system are people in the theoretical sense; they are corporations. They are, basically, those people who can afford to go to the Supreme Court, a very, very expensive endeavour. Very few of the equality-seeking groups, very few of the people such as you represent are able to use that process. You spoke of the bread-and butter-issues. It makes it difficult for groups like yours and even more difficult for the people you represent to come before committees like this. Even with a social democratic government we have an abundance of lawyers and academics and, unfortunately, not many people representing that vast number of people who are disenfranchised, who are disadvantaged. I think those are the issues I want you to talk to. How do you see that could be included? Personally, I have problems with the court system. I would like to see it somehow on perhaps partly a directive basis or some other mechanism in the court system.

Mr Kidd: It is very appropriate that you refer to the court system, because we are not very encouraged, after last week's decision by the Federal Court --

Mr White: Nor are we.

Mr Kidd: -- the cap. I am afraid there is not very much faith in the court system this week from people who are living in poverty. But I also would like to say that, again, we are faced with a current situation and, we believe, a future situation in which we have to use literally all means available. That is why I said that we not only need these rights to be enshrined in the Constitution, but we also need the legislation; and the government has to take the leadership, and the political decisions have to be forthright. I would also like to remind you that most of the appointees to the bench are political decisions as well -- that is an aside.

For so many people, a lot of times, the courts have provided some benefits to us and again, with this homeless right to vote, we could work out individual solutions for this community or that community; but without the provincial Legislature taking a position or a court taking a position, it does not help somebody in Windsor and Thunder Bay. Number one is, I think we would still like to see a social charter within the Constitution, even though we want the government and the legislative bodies to take leadership.

The other thing I would like to remind you, and we are being reminded of this every day, those of us who have been given some access to the situation with the current free trade talks with Mexico and in terms of comparing the situation with the EEC: One of the only defences we have against the level playing field where we are not even on the surface, and the future plans that some of the negotiators would like to see, such as the dismantling of UIC and social assistance and everything -- is the fight for a social charter between countries so that Mexico, the US and other international communities would have to live up to this type of discussion we are having in this room, on a larger international basis.

It is a defensive posture, but I am afraid we have to be able to use whatever means at our disposal, and so I would use the same logic here. For a poor person in Barrie, we not only have to count on the actions of the Legislative members here and in Barrie, but at times we have to count on the court procedure. We still need that, and I would give the leadership to this body, but we need some of those items identified in the Constitution as basic rights. Because clearly if they are not mentioned there and if they continue to be property rights and white male kinds of rights -- I would agree with the previous speaker that a lot of the rights basically are based on the privilege that myself as a white male and others have in this province -- that unless they are also written in the Constitution, it is not going to help the political leadership either.

That is our response to that. We want to see some action. The paper will not mean anything unless there is also some action to back it up, and legislation.

Mr Malkowski: I was impressed with your presentation. It is similar to my own experience. I used to be poor and when I would go to the welfare offices they would often tell me, "We need an address from you before we can give you your cheque." I would have to go and find a place or an apartment and then they would say, "Well, where is your money?" So you are in a catch-22 situation. You cannot get it. When you are talking about social and economic rights, how do you solve that kind of situation? Should you have the right to get a cheque from social assistance without an address, and how do you enshrine that?

Just briefly, if you could talk about that, how would social and economic rights benefit people in that situation?

Mr Kidd: It is a very good question. This question gets asked of us a lot of times, the question of an address, just like your question earlier. We have had to come up with solutions because it is a tough question at times when people are not staying in one particular place in any given period of time. In terms of a place of contact, we have at least tried to establish that as something that should be looked at. In terms of contacting people and in terms of having some kind of communication with people who are poor, we would like to just establish the place of contact.

But in terms of the other things that we are saying, in terms of the rights of the citizens who live within the confines of this community, they are there and I think it is irrelevant, their place of contact, their place of address. We have an incredibly increasing marginalized sector of our economy who are basically not even applying for social assistance programs. The underground economy is growing. You can walk not very far from the Legislature here and see the multiple forms of people who have disengaged from whatever economic system where there is at least some licensing or registries or anything else.

There are people selling all sorts of products, illegal or legal, within two blocks of this Legislature. There are people doing whatever is necessary to survive. And there are basic ways they have to be guaranteed that they will be able to have access to the rights that we consider basic in this country. And that is why I was trying to say earlier, what is often not understood, that the right to vote -- the fact that homeless people do not have the right to vote, that always registers. But the fact that someone literally does not have a right to a job, a right to a decent income -- you have so many people who, at this present moment, at 23 may never work again -- I think that is just as important. There has to be a direct leadership given to make contact and to say something needs to be done on this. I do not think it is just a matter of working out the incidentals of where they hang their hat or where they live. It requires not just to be protected within a Constitution that people have a right and an access to these points, but there has to be some leadership and some programs to go after these issues. There is a glaring issue two blocks from this Legislature.


The Acting Chair: Thank you very much. I appreciate your being with us, Mr Kidd, and for the presentation you have made to this committee. Again, we really appreciate hearing from poverty groups in Ontario because of the concerns that have been raised about the future of our province. The wellbeing of the province is tied not only to the Constitution but to our economic and social and spiritual wellbeing.

Mr Kidd: I would like to thank you again for having us and I also would like to extend an invitation. We often take people on tours of the other side of Ontario. I would like to extend this to members of this committee. If any of you are ever concerned and considerably interested in that, we would be more than happy to take you on a tour of the other side, to give you another side of the life of Ontario.

The Acting Chair: Thank you for the offer.


The Acting Chair: I would like to speak to the members now about a number of issues surrounding our travel. As of yesterday, we had a very large obstacle put in our way in terms of one of the groups that is going out to the west. That has meant we have had to rethink totally the trips that are taking place. I just need to share this information with you, especially those who are going to be going on the trips with us.

It has to do with the fact that rather than meeting with the British Columbia committee on Wednesday in Victoria, as we had planned, it has been moved up to Tuesday night in Vancouver. We have to move that along, so we have asked for the group that is going to Whitehorse and to Vancouver to also go to Edmonton, because there were problems in the other group in getting to Edmonton and going through Edmonton a number of times. We have split the committee into two groups and the other group will now go to Winnipeg and to Yellowknife. We have all of these changes, so the tickets that some people have will have to be given back and we will have to issue new tickets. I just needed to indicate that to you.

There is a statement of information that needs to be read into the minutes, just so we are clear about that. The schedule is being rearranged to allow one group to adjourn to Whitehorse, Vancouver and Edmonton, and the other group will adjourn to Yellowknife and Winnipeg, the presupposition being that we will be in two groups, the same committee but two groups, doing the work of the select committee on Ontario in Confederation. I just want to make sure that is clear to the committee at this point.

The other thing is that there are many members here who are leaving today, going back to their ridings, so it is agreed that we will have to pick up our tickets at the airport. I hope that is clear to the members of the committee.

Do you need to say anything, Harold?

Clerk of the Committee: No, thank you, sir.

The Acting Chair: Unless Harold can get them to us sooner, I do not --

Mrs Y. O'Neill: I will be here tomorrow -- I am not going home this week -- so I certainly would appreciate Mr Brown giving them to me tomorrow.

Mr Harnick: I can make arrangements with Harold if he can get them to my office.

The Acting Chair: Okay. Mrs Mathyssen, how are you on this?

Mrs Mathyssen: I have obligations back in my riding, so I will have to pick up the tickets at the airport.

Mr Malkowski: Can you send them to my office?

The Acting Chair: Yes, that can be done.

Mr Malkowski: At 77 Bloor Street.

The Acting Chair: Okay, that would be tomorrow then that they would get to you.

Mr Malkowski: I just want to clarify. There is a change in scheduling in terms of places. We have added Calgary. What did you say? Explain that again. It was not clear to me. Could you just run through it again?

The Acting Chair: Let me explain it again. The one group that was going to Victoria and Whitehorse is now going to Whitehorse, Vancouver and Edmonton.

Mr Malkowski: Have we dropped Victoria?

The Acting Chair: We are trying to rearrange to meet the witness in British Columbia in Vancouver.

Mr Malkowski: So Victoria has been dropped then? It is not on the list any more?

The Acting Chair: That is correct, basically because the committee in British Columbia could not meet us on Wednesday. They are meeting with their federal counterparts in Kelowna, BC.

Mr Malkowski: That is fine. It is clear.

The Acting Chair: It has been requested that it would be helpful, if the researcher with the one group that will have a shorter journey could come on to Edmonton and help us in Edmonton in our deliberations there. I just need to get the will of the committee on that.

Mrs Y. O'Neill: Are you suggesting that there will still be a researcher with the Winnipeg-Yellowknife group?

Mr Kaye: The proposal is that the researcher who would be accompanying the members to Yellowknife and Winnipeg would then go on to Edmonton to join me there and be of assistance.

Mrs Y. O'Neill: As you finalize your reporting basically for the week?

Mr Kaye: Yes.

Mrs Y. O'Neill: I have no difficulty.

The Acting Chair: I believe that is all the business the committee has before it. We will now adjourn the committee to Whitehorse and to Yellowknife next week.

Mrs Marland: That is a very exciting adjournment.

The committee adjourned at 1207.