Proceedings of the Standing Senate Committee on
Issue 9 - Evidence, April 15, 2002
OTTAWA, Monday, April 15, 2002
The Standing Senate Committee on Human Rights met this day at 4:10 p.m. to study the status of Canada's
adherence to international human rights instruments and on the process whereby Canada enters into, implements and
reports on such agreements.
Senator A. Raynell Andreychuk (Chairman) in the Chair.
The Chairman: Honourable senators and guests, today we will celebrate an event that took place on Parliament Hill
20 years ago this Wednesday, April 17, 1982, when Her Majesty Queen Elizabeth II signed a proclamation to enact the
Constitution Act, 1982. This act included two notable elements: a wholly domestic process for amending the
Constitution and the constitutionally entrenched Canadian Charter of Rights and Freedoms that guarantees certain
basic rights. It is the Charter that we are celebrating today.
We have with us a round table of distinguished experts who will share their ideas with us on the role of Parliament
and parliamentarians in dealing with issues of human rights and how the Charter has affected this. They have been
asked to address issues such as the interaction between the courts and Parliament in the development of public policy
and the protection of human rights; the role of parliamentarians in dealing with human rights questions since the
enactment of the Charter; how the Charter has affected the profile of human rights issues in Canada; and the
relationship between the Charter and our international human rights obligations.
Our examination today will help us to develop an appreciation of how human rights issues are dealt with in the
governmental system in Canada, how the Charter shapes public affairs and how Parliament fits into this process. This
is linked to our study of Canada's adherence to international human rights instruments and, in particular, the portion
of our study during which we will address issues relating to Parliament, human rights agreements and the legislative
process in Canada.
The effects of the Charter on Canada have been profound. Since 1982, Parliament and provincial legislatures have
had to evaluate the impact of any proposed measures on rights guaranteed by the Charter. This has inevitably raised
the profile of human rights and has affected the public agenda in fields as diverse as linguistic rights, women's rights,
Aboriginal rights and the rights of visible minorities and the disabled, as well as the issue of sexual orientation, among
From an institutional perspective, the Charter has raised the profile of the judiciary and has enhanced the power of
the courts to review the actions and decisions of the bureaucracy, of the executive government and even of Parliament
itself for the purpose of upholding basic human rights as enshrined in the Charter.
This transformation has created a tension within our governmental system. Legislatures and other public officials
may wish to pursue a certain policy only to find that they face questions, barriers and challenges that they would not
have had to address before 1982. Such tensions should not necessarily be seen as a negative development. Policy must
be crafted more carefully and a full evaluation of any human rights effects must be undertaken before legislative or
regulatory pleasures are implemented. Simply put, it is no longer possible to responsibly develop public policy without
reference to effects on human rights.
This is a beneficial change to be seen in a positive light. If government officials and parliamentarians fail in their
responsibility to evaluate policy for its human rights effects before implementation, such an evaluation can be forced
afterwards through the courts.
I shall now introduce the five panellists, after which they may make their opening remarks. I am hopeful that we will
have a round table where we can share our points of view and perhaps elicit more information from our guests that will
be helpful for our study.
Our first panellist is the Right Honourable Antonio Lamer, who has had a distinguished career in the legal
profession as a legal practitioner, a university professor and a leader in the field of criminal law. Mr. Lamer was called
to the bar in Quebec in 1957. He served as a special adviser to the Quebec government on the reorganization of the
province's courts, and his recommendations are largely reflected in the structure of the Quebec court system as it exists
It is, however, as a judge that Mr. Lamer has become widely known outside the legal community. First appointed to
the bench in 1969 as a Justice of the Superior Court of Quebec, he was appointed to the Quebec Court of Appeal in
1978. He also served as vice-chair of the Canadian Law Reform Commission and later as its chair. He was appointed
to the Supreme Court of Canada in 1980 and was named Chief Justice of Canada in 1990. Mr. Lamer served in that
capacity until 2000.
During his 20 years on the Supreme Court, he was a first-hand witness to, and participant in, the profound
transformations brought about by the Charter and the evolving dynamic between the legislators and the courts. I am
hopeful that he will share these experiences with us today. Mr. Lamer is a Companion of the Order of Canada.
Our second panellist is the Very Reverend the Honourable Lois Wilson. Ms Wilson recently retired from the Senate
and so members of the committee will not require an introduction. However, I will outline some of her
accomplishments for our guests.
An author, a minister and an internationally known authority on human rights, Ms Wilson was the first woman
moderator of the United Church of Canada. She was the first Canadian to serve as president of the World Council of
Churches and was chancellor of Lakehead University from 1990 to 2000. Ms Wilson has also written numerous articles
and books. In the field of human rights, she has worked with Amnesty International, with the Canadian Institute for
International Peace and Security and with the Ontario Human Rights Commission; and she has served as chair of the
International Centre for Human Rights and Democratic Development.
A recipient of the Pearson Peace Prize in 1985, Ms Wilson's accomplishments have been recognized by the World
Federalist Movement. Before being summoned to the Senate in 1998, she was made an Officer of the Order of Canada
and she received the Order of Ontario.
In the Senate, Ms Wilson continued to work for human rights. She actively supported the establishment of this
committee and she co-chaired the parliamentary human rights group. She was also appointed Canada's special envoy
to the Sudanese peace process.
I know that all senators welcome Ms Wilson back to this committee. Even though she is in a different role, we know
that she will continue to provide the committee with excellent advice, and I look forward to that.
Our third panellist is Professor Wayne MacKay, a native of Nova Scotia with a background in law and education,
who has served as president and vice-chancellor of Mount Allison University since last year. Prior to that, Mr.
MacKay had taught at Dalhousie University since 1979.
Mr. MacKay has received numerous awards in recognition of his teaching and human rights work. In the human
rights field, Mr. MacKay has been involved in ground-breaking cases and has worked with the Canadian and the Nova
Scotia human rights commissions. He was head of the Nova Scotia Human Rights Commission from 1995 to 1998. He
has written extensively on human rights and constitutional law. While at Dalhousie, Mr. MacKay was involved in
promoting access to legal education for native and Black students.
Our fourth participant is Professor Pierre Foucher, from the Faculty of Law at the University of Moncton. He
studied in both Montreal and Kingston and has professional experience as a private lawyer as well as with the federal
government. He has worked in the field of constitutionally guaranteed educational rights of linguistic minorities, an
issue dear to the hearts of many senators and the work we do here. He also teaches in a variety of fields including
constitutional law, public freedoms, international protection of human and minority rights and linguistic rights.
Our next presenter will be Professor Martha Jackman, a member of the faculty of law at the University of Ottawa
and vice-dean of the French language common law program. She has been involved in numerous legal cases and has
worked with the Court Challenges Program and the Women's Legal Education and Action Fund. She has worked in
the field of new reproductive technologies, disability rights, women's rights and poverty issues. As well, she has
authored numerous articles, including the piece on social and economic rights that has been distributed to all senators
of this committee.
In conclusion, I want to thank all the participants for coming and sharing their ideas on how the Charter has
affected parliamentarians' roles in the field of human rights.
Each of our presenters will be asked to make a short introductory remark of no more than 10 minutes; otherwise, I
shall be forced to intervene. We want to get to the exchange portion of our meeting; we look forward to the discussion.
I should say that we do televise these committee hearings so that your input today will be shared with Canadians
Without further comments from me, I will turn to the Right Honourable Antonio Lamer for the opening remarks.
The Right Honourable Antonio Lamer, Former Chief Justice of the Supreme Court of Canada: Madam Chairman, it is
both an honour and a pleasure for me to have been invited to come here to share with you my thoughts about the
Charter of Rights and Freedoms and to discuss the impact the Charter has had on Canadian society and on our
government institutions as well as on the general attitude of Canadians.
Of course, prior to 1982, ours was a free and democratic society. Many Charter provisions merely codify existing
practices. I am thinking in particular about sections 7 to 14 and to a number of others. You will recall that before 1982,
during the 1970s, that is after the introduction of Prime Minister Diefenbaker's bill, the Canadian Bill of Rights, the
ruling in Drybones gave life to this bill. To all intents and purposes, the Bill of Rights recognized the same things as the
Charter, and perhaps even more, notably the family, proprietary rights and protection of property. Currently, these
areas are not covered in our Charter.
Shortly thereafter, in Lavell — I would add, unfortunately in Lavell — the Supreme Court over which I later had the
honour of presiding, as I was not even a member of the Court at the time, stepped back and stifled this breath of fresh
air Canadians had let in with the Bill of Rights and its interpretation by Chief Justice Laskin, which was supported by
Chief Justice Dickson and others. Unfortunately in Lavell, the Canadian Bill of Rights was almost killed. As a young
attorney, I no longer argued my cases on the basis of the Canadian Bill of Rights.
Two things happened when the Charter was enacted in 1982. First of all, we acknowledged the most precious of
human rights and entrenched them in the Charter.
Secondly, not only did we acknowledge these rights, but Parliament, home to our elected representatives, willingly
imposed upon itself the obligation not to limit these rights unless it could be proven that limiting them was justified in a
free and democratic society — not just in the free and democratic society in which we currently lived, but in any future
free and democratic society. In addition to reflecting that which we hold dear, the Charter acknowledged that Canada
already had a long-standing culture of human rights and freedoms.
Thirdly, this Charter contributed to the process of upholding, enhancing and enriching this culture of human rights
and freedoms. Just think of where we were thirty years ago and how tolerant we are today of certain groups. To my
mind, the most important thing is not the document known as the Charter, but the culture of human rights and
A document is but a piece of paper. If you do not have a culture of human rights, the Charter will look like the
former U.S.S.R.'s constitution in the days of Stalin. I know I have not taken up all of my 10 minutes, but I reserve my
remarks for the discussion.
The Chairman: We will turn to the Very Reverend the Honourable Lois Wilson.
The Very Reverend the Honourable Lois Wilson: I am delighted to be here. It is a little strange being at this end of the
My contribution will be mainly on what I see is the role of parliamentarians in dealing with human rights issues in
Canada in the context of the Charter. I will also make some observations from my four short years in the Senate that I
think are valid.
The Charter of Rights and Freedoms has been one of the most important developments in Canadian law in the 20th
century; ipso facto, parliamentarians should know about it. The people who do not want to know about it, who
discredit the Charter and the courts, usually want majority rule. However, it seems to me that the Charter is about
protection of minorities.
It is also important that parliamentarians know the texts of both the international covenants that Canada signed
and their connection with the Charter. However, the issue of human rights is not on the speaking agenda of most
parliamentarians and most senators in any detail. When I attempted to recruit some people for the cause, the MPs in
particular said to me, ``Be realistic; we have to get re-elected''; and ``It is more important to build a road for my
constituents than to worry about human rights.'' That is one of the difficulties I see.
One of the main problems is that parliamentarians are unable to see the direct connection between the international
covenants, the Charter and their own constituents. When their constituents make enquiries, in many cases the Charter
or the international covenants could be invoked, but the parliamentarians do not know about it so they cannot do that.
The first thing is knowledge, knowing what they are.
The second point on the role of parliamentarians is that they should complement and be a balance to the roles of the
executive, the government, the courts and civil society. Quite often, some of the issues are so politically volatile that
Parliament is the place where these battles should be fought on what these values are that Canadians hold in common.
If parliamentarians had knowledge of the Charter and the covenants, then I believe they would be better suited than
even perhaps the courts to have an input.
On the other hand, my observation is that parliamentarians have not exercised their power, and I have asked the
question why. Judge Major in 1999 said: ``Legislatures across the country have not been particularly active doing
That is a bit of an overstatement. We have done some things. He was very critical of our role in human rights.
Parliamentarians are uniquely positioned to advance human rights, because we deal with legislation. Why is it so
difficult then for this to be implemented? I came up with four points: first, the political considerations that always
impinge; and second, the constituency pressure on elected members in particular. Senators do not have that as much
although they do have pressures, I have discovered. The third point is the ipso facto disinterest of elected
parliamentarians; as I mentioned, they have to build roads. Fourth, and most important, there is no vehicle within the
parliamentary system to assist parliamentarians with their judgments; there is no kind of referee. Hence, there is
uncertainty in this field. We faced that when we were looking at the Young Offenders Act and whether it conformed
with the Convention on the Rights of the Child. At that time, half of the people said ``yes'' and half said ``no,'' so no
It is very good for these issues to be raised in Parliament because it is a public forum. That is where the issues are
debated. Parliamentarians have to be ready to make the hard choices in balancing the human rights objectives with
other societal objectives. Courts sometimes strike down a law. However, legislatures can always come in with a new
replacement, if they need to. That is a delicate balance.
My main point is that domestically there is no instrument by which parliamentarians can take the time to examine
the issues, receive testimony and then formulate the legislation. We tend to do it after the fact: Does this bill conform
with the Charter and the covenants? My wish list would be that we do that work before the legislation is formulated. It
is my hope that this committee may see its way to doing that or at least see that it is done by some group in the system.
I do not see any vehicle for this yet coming into view in the House of Commons.
Parliament also has a capacity for regional hearings, which is a very strong thing in its favour. The subject of human
rights needs to be focused, as it is in Australia and in the U.K., so that Parliament is alerted when things are coming
along that have human rights implications.
That is mainly what I wanted to say. I will stop here. I have some things to say about the Supreme Court but I will
wait until later.
The Chairman: I will invite the next panellist, Professor MacKay, to give his presentation.
Professor A. Wayne MacKay, President, Mount Allison University: Thank you, chair. It is a great honour to be here
with such distinguished panellists and honourable senators. I was here recently on the anti-terrorism bill. I always
enjoy the opportunity to attend parliamentary committees. I enjoy it even more now, since in my new role it is harder
to keep in touch with the law. I thank you for inviting me. It also gave me the opportunity to read your report entitled
``Promises to Keep: Implementing Canada's Human Rights Obligations'', which is a very impressive report. It is my
hope that we can have a discussion of that when it comes around.
I will touch on the three points that you raised in the directive: the role of Parliament in human rights in the context
of the Charter; the profile of human rights issues; and then international obligations.
Turning to the role of Parliament in the human rights area, I have distributed a paper, which is coming out in the
Dalhousie Law Journal, entitled ``Who is running this country anyway?'' This paper responds to the Morton and
Knopff critique entitled The Charter Revolution and the Court Party, and takes the position that the courts in Canada,
in my view, have played an appropriate role balanced with the legislature and the executive and have reached, not an
ideal, but a pretty good compromise and balance of things — although I must add that that is not the view of Morton
and Knopff, and we might have some discussion on that.
My first point is that I think there is a role for all three branches, as was stated in your report — the executive, the
legislature and the courts — in promoting human rights and in promoting the Charter. There are a number of good
suggestions in your report, such as a parliamentary committee looking at Charter and international compliance, which
is quite different from a proposal put forward by the Reform and later Alliance about looking at section 43 overrides.
Your suggestion is for a preventive rather than after-the-fact role, and I think that would be very useful.
Second, and I developed this at some length in the larger paper, if you want to look at that, the dialogue between the
courts and legislators on Charter issues has been healthy for producing better legislation. A number of people — Peter
Hogg, Peter Russell and others — have looked at the fact that even though a lot of legislation is challenged much of it
is either saved under section 1 or rewritten in a later form and then saved under section 1. It is fairly rare that the
objective of the legislation is challenged. It is much more frequently the proportionality or the means that are debated
and, more often than not, it is a dialogue between legislators and courts rather than the dissonance that some would
have you believe.
There is also the section 33 override, which is a fairly controversial matter in some circles. However, in some ways I
think it is a classic Canadian constitutional statement that we have constitutional supremacy. We do not really have
either judicial or parliamentary supremacy, the constitution is supreme, and the balance is worked out by the dialogue
between the two branches of government. That is not necessarily a bad thing, obviously being used sparingly.
In my view, another important role for the Parliament in this area is creating and funding administrative agencies
such as Human Rights Commissions, and my stint as director of the commission conditions this. There are important
roles for commissions in the role of human rights and parliamentarians even after the Charter.
First, the Charter applies to the public sector or the government actors, not to the private sector. There continues to
be an important role for human rights commissions and the legislation arising therefrom. There is a different structure
of conciliation, mediation and cheaper access through human rights commissions. I would suggest that the Charter has
reinvigorated human rights commissions rather than subtracting from their role. That is something we might look at.
Ted Morton and Rainer Knopff, in their book The Charter Revolution and the Court Party, attack the role of courts
as being too activist, antidemocratic and captured by special interest groups. In the article I have circulated, I attempt
to rebut each of those points. In the broad sense of democracy as defined by the Supreme Court of Canada in the
Reference re Secession of Quebec, courts promote democracy, in my view. Democracy includes protection of minorities
as well as majorities. All three branches have a role to play.
In terms of the courts being too activist, it may depend upon how you define that term. Morton and Knopff's
objection might be as much to the substantive human rights agenda as to the process and illegitimacy they put forward.
There is a role for making laws in the human rights area, such as privacy, which has been flagged in your report as
an emerging human right that is not well protected and social condition. That is the first point.
Second, in relation to the profile of human rights issues in Canada, the Charter has advanced the profile of rights
issues generally and human rights in particular. We need only look at the media attention any event relating to the
Charter attracts to realize that it is different than prior to 1982. It does not mean that the courts were not important
before that, but in terms of profile since the Charter, there has been much more attention. It is rare to read a newspaper
that does not have an issue dealing with an important Charter case. As I indicated earlier, that has brought out human
rights commissions at the same time.
There is also a higher quality of reporting in the media about court decisions on human rights issues. The recent
series of articles by The Globe and Mail's Kirk, 20 years after the Charter, is impressive. When I clerked at the court in
1978-79 with then Chief Justice Laskin, media relations was just starting through the court. I know that has advanced
since that time and that the impact has been good.
In the recent debate around our anti-terrorism law, I believe Canadians have had a healthy debate about the balance
between security and protection of rights. In that debate, human rights and Charter issues were front and centre, more
so than in some other democratic states. That in part bespeaks the culture of rights that former Chief Justice Lamer
talks about. I agree with his view, that the advancing of a culture of rights is more significant than the document itself.
The Marshall case in the Aboriginal area, although not directly Charter, section 35, and cases such as Latimer and
others have led to a healthy public debate about basic human rights issues and have advanced the cause of human
rights in Canada.
The third point is the Charter in Canada's international obligations. The essential question is the extent to which the
Charter is an implementing tool for international obligations. In some respects it is. The United Nations Commission
on Human Rights has cited the Charter. I think that is true in relation to the civil and political rights, but in certain
other areas, such as social, economic and cultural, it is less so. That is part of the gap that you identify in your
``Promises to Keep'' report. While it is an important vehicle, it is not the only vehicle.
The extradition cases are an example of how it has been used, such as Burns and Rafay facing execution, which have
promoted international commitments. In areas of social and economic policy — and I review this in a study to the La
Forest human rights review panel — the courts properly, in my opinion, have deferred social and economic matters
primarily to the legislative branch. That makes it difficult for the courts to implement social and economic rights
through the Charter. As a result, it is an area where there is still an important role for the courts. Notwithstanding the
positive rights approach in Eldridge, most of the Charter cases have negative limits on government approach.
Finally, on this point, there are institutional limits to courts that have been frequently mentioned in Supreme Court
and other cases about trying to deal with complex social and economic issues in a court environment where I think
legislative, parliamentary and Senate structures may be more appropriate. I applaud some of the suggestions in the
``Promises to Keep'' report as ways to do that.
I will make a final comment on human rights officials. When I was director of the Nova Scotia Human Rights
Commission between 1995 and 1998, I sat on that committee. It is an interesting and useful body to educate people on
our international commitments, but again I agree with your report that we need to get back to a higher ministerial level
of meetings. Your suggestion of having a parliamentary committee examine the gap between international obligations
and domestic law is a very useful idea. There have been great gains under the Charter, but there is still a significant role
for parliamentarians to play.
Professor Pierre Foucher, Faculty of Law, University of Moncton: I thank you for the invitation. It is an honour to be
here. The problem with speaking last is that everything you want to say has been said.
I would now like to highlight the main points of my submission. The Charter has changed the role played by
parliamentarians in three areas: first, in enhancing social solidary; second, in finding the balances between rights and
limits; and third, in respect of their duty to legislate.
With respect to social solidarity, former Chief Justice Lamer reminded us that we are not responsible for inventing
fundamental rights. They pre-date the Charter and were known then as individual rights and civil liberties. Legislators
have intervened on numerous occasions in the name of social justice and this should continue to be the case. Laws have
been enacted to establish collective bargaining and labour dispute arbitration systems. Human rights are governed by
laws and administered by specialized bodies. Health and social assistance are the result of statutory schemes. The
Charter has played an indirect role in these areas, in that it allows unfair procedures to be rectified and compensates for
the silences of Parliament.
In terms of access to the law, I maintain that parliamentarians have a very important role to play in the development
of social solidarity. They must continue to find ways of redistributing our wealth, protecting our environment,
providing security, offering health care, education and housing and ensuring that the economy functions properly and
respects the rights of workers.
Parliamentarians also have a role to play in a second area, namely in striking a balance between rights and
responsibilities. The human rights enshrined in the Charter are not absolute. They may be limited by laws that are
reasonable in a democratic society. It is the responsibility of the courts to determine whether or not laws are
reasonable. In seeking that balance, the Supreme Court has made it plain, particularly in its most recent judgements,
that it was not applying a mechanical test and that it would have regard to the context of each case, as well as the
necessary latitude that Parliament must have. It is therefore up to parliamentarians, first and foremost, to ask
questions, consider the wisdom of the proposed measures, and try to identify arrangements that would enable the
government to achieve its objective in a reasonable manner.
Moreover, since the courts have now agreed to admit excerpts of parliamentary debates into evidence, what is said
in Parliament will be of tremendous importance in making the courts aware of the motivations behind legislation.
The third area of intervention involves the duty of parliamentarians to legislate. The law may, on occasion, sin by
omission, that is to say government inaction may result in a violation of the rights of certain individuals or groups
protected by the Charter. This most commonly happens in relation to equality rights and language rights. In
appropriate situations, the courts have held that the individuals in question are automatically included among those
the law was intended to benefit. In other cases, the court will prefer to allow the legislature the time to amend its
legislation. In the realm of language rights, the courts have recognized a duty to legislate in order to implement the
rights guaranteed by the Charter. The Court has clearly stated that administrative and bureaucratic inconvenience
cannot provide an excuse for failing to apply the principle of equality between official languages. However, if the
legislatures do not respond, the courts may feel compelled to exercise closer supervision in respect of how their orders
are carried out.
Parliamentarians must therefore take the courts' rulings very seriously and carry out their duty to legislate not to the
minimum necessary extent, but to the maximum possible extent. Interpreting the judgment itself calls for an evaluative
process in which policy and law are both present, side by side, and in which parliamentarians also have a contribution
In conclusion, the concept of human rights is a relatively recent one in human history, although the idea that
political authorities must be constrained by the law is a very ancient one. Some people trace it back as far as the Magna
Carta. The idea of human rights, which was born out of the English and French revolutions, is based on a concept of
the individual that gives preference to individual liberty and dignity and to the equality of individual rights. That idea
of fundamental rights is supplemented by the American idea that because these are rights, the courts have a mandate to
enforce them. That idea is now part of how we conceive of democracy: a democracy of rights and not merely of
Parliamentarians have lost their monopoly on constitutional power. The 17th century struggle for the sovereignty of
Parliament against arbitrary royal power has continued into the 21st century. Today, the executive branch controls the
state everywhere in the world, in the struggle to preserve equality, fundamental rights, democratic rights,
administrative and criminal justice and, in the case of Canada, linguistic duality. I am not one of those who believes
that the courts have gone too far. On the contrary, I think that they have merely occupied a space from which
parliamentarians had withdrawn too far.
Some sociological studies suggest that having come through a disappointing period of Charter-based claims being
made in the courts, social groups will now look once again to legislative bodies to advance their rights. A reassertion of
the role of parliamentarians, not only in respect of legislative action, but also in respect of representation and public
participation in the democratic process, may lead us to effect institutional reforms that will enable our elected
representatives to play a more dynamic role in the development of human rights. To my mind, this is a role that could
be reserved for the Senate of Canada.
Elected parliamentarians, who have been given the responsibility of protecting the public interest, of representing
their constituents, and who are subject to the constraints of party discipline, react acutely to sudden rises in the public's
temperature. Wise indeed are those whose accept from the outset the fact that in a democracy, there are other
institutions whose role it is to ensure, through reasoned argument founded on principles and precedent, that the most
precious human rights are never sacrificed on the altar of political expediency.
Professor Martha Jackman, Faculty of Law, University of Ottawa: I too join with my colleagues in thanking senators
for honouring me with this invitation, particularly as your new committee is one in which we have a great deal of hope.
I should like to speak this afternoon about the Charter at 20 years from the question, Is Canada more equal? As you
know, the great objectives of the Charter of Rights and Freedoms were to ensure that Canada become more free and
more equal. I should like to focus on the equality aspect.
As Senator Andreychuk pointed out, there will be many celebratory events in the next few weeks for the anniversary
of the Charter. Regretfully, most of them are focused on the courts. I am happy to be here to speak on the role of the
legislature in terms of the Charter, because, as you know, the language of the 1982 Constitution Act states explicitly
that the Constitution binds the Parliament of Canada and the provincial and territorial legislatures as well as the
federal and provincial governments. Clearly, Parliament has an important role vis-à-vis the Charter.
In terms of the courts, there have been some important gains in equality rights. My particular interest is in the
equality rights of low-income Canadians. For example, in the JG decision that former Chief Justice Lemire rendered, it
was recognized that when the state threatens to take away children from parents there is a positive right of parents to
legal aid to be able to participate effectively in that decision. That is a very important gain.
Regretfully, however, in terms of equality rights of poor people, there have been many losses, particularly at the
lower court level. One of the most egregious was the Mast case, where the Government of Ontario decided to slash
provincial welfare rates that were already universally recognized as being 20 per cent too low for people to be able to
live. The Ontario courts did not find this a violation of equal rights of welfare recipients. The Supreme Court of
Canada was unwilling to hear an appeal in that case.
We were in the Supreme Court again this past fall in the Gosnay case attempting to convince the court that again
grossly inadequate welfare rates are a violation of Canadians' equality and security rights. We are optimistic that the
court will rule in favour of low-income Canadians in this case.
One of the explanations for the lack of progress within the courts on behalf of the equality rights of poor people is
the legislative history of the Charter. Attorneys general have argued, and the lower courts have generally accepted, that
social and economic rights — the right to housing and to a minimum level of income, for example — are not included
under the Charter because these rights fall essentially within the purview of the legislature.
There is no question that in 1982, when the Charter was enacted, Canada did have a relatively healthy welfare state.
It is hard to believe, but in the late 1970s the Economic Council of Canada issued annual reports two years in a row
identifying poverty as the most important economic issue facing Canadian and Canadian governments. In the early
21st century state, it is impossible to imagine that an economic institute would view poverty as a major economic
problem. However, that is the climate within which the House of Commons and Senate debated the Charter in 1981
At the time of consideration of the Charter, parliamentarians did see essential social programs guaranteeing security
in the event of lack of income, unemployment and health issues as pressing and important objectives of government. It
was accepted as a responsibility of the legislature. Addressing social and economic disadvantage and exclusion was
taken to heart by legislators. If you asked parliamentarians and senators at that time whether they thought that the
Charter should be doing that, they were equivocal in their answer because they felt that it was their role to ensure that
adequate social programs exist to guarantee the equality and security of Canadians.
Since the 1982 enactment of the Charter, the welfare state in Canada has been under serious attack. I will mention
In the 1985 federal budget, the Canada Assistance Plan was repealed. The Canada Assistance Plan was the
equivalent of the Canada Health Act in the area of welfare. It was the federal legislation that ensured that Canadians in
all parts of the country had a right to a minimum level of income assistance from the state in the event of need.
The Canada Assistance Plan was replaced with an unconditional program that essentially transferred federal funds
to the provinces without a requirement to respect the equality and dignity rights of low-income Canadians.
Following the repeal of the Canada Assistance Plan, provincial welfare rates were cut in virtually every province.
The only federal legislative incursion that we saw after the repeal of CAP was the child tax benefit, which is inherently
discriminatory. Essentially, Parliament has allowed provinces to take federal money designed to remedy poverty and
low-income families and to claw that money back from welfare-poor families. This policy has been identified and
argued to be discriminatory. The federal government has turned a blind eye and has supported what has
euphemistically been called ``flexibility in provincial welfare regimes.''
The Constitution and the Charter apply to the Parliament of Canada and the provincial legislatures. The Charter
imposes direct obligations on Parliament and the provincial legislatures to ensure that their laws are compliant and
that their laws promote rather than undermine values of equality and inclusion.
Not only are parliamentarians obligated under the Charter to ensure that their laws are compliant with equality
rights guarantees, but also they have an important role in supervising the acts of the executive and the administrative
branch in this regard.
To ensure compliance with the Charter, and in particular with Charter equality guarantees, Parliament must,
independently of what courts may subsequently say about legislation, ensure that parliamentary action is promoting
and not undermining the equality and dignity of low-income Canadians, in particular.
It behooves Parliament to act independently of the courts, rather than to wait for courts to rule that federal
legislation is unconstitutional and then to respond sometimes begrudgingly.
A hallmark of this proactive role of Parliament and of the Senate, in particular, can be found in Bill S-11. As
honourable senators will recall, in 1998, the Senate unanimously enacted Bill S-11, which proposed to amend the
Canadian Human Rights Act to add or recognize social condition as a prohibited ground of discrimination under the
Canadian Human Rights Act. Thus, poor people could go to the Canadian Human Rights Tribunal to complain about
violations of their equality rights and discriminatory gestures relating to their economic circumstances.
When Bill S-11 went to the House of Commons, the Minister of Justice at the time felt that she was unable to act
because the commission headed by Mr. Justice La Forest was undertaking a full-scale review of the Human Rights Act.
The minister preferred to wait for Mr. Justice La Forest's report on the act and to address the matter at that point.
In 2000, Mr. Justice La Forest tabled his report in relation to the Canadian Human Rights Act. In that report, Mr.
Justice La Forest recommended, based in part on an excellent report by Professor MacKay, that the Canadian Human
Rights Act be immediately amended to include social condition as a prohibited ground of discrimination so that poor
people would be directly protected from discrimination in relation not only to the federal government but also to
federally regulated entities such as banks and broadcasters.
The La Forest report was tabled in 2000. As yet, the House of Commons has done nothing. I asked Minister
Cauchon, when he was at our law school this week, what his intentions were with respect to the report. He responded
that at the moment he has no intention.
I urge this committee to take a second kick at this can and to look again at the possibility of enacting legislation
identical to Bill S-11 and to send it to the House of Commons where members there, it is hoped, will now feel able to
support such a bill.
Senator Beaudoin: I am tempted to plunge immediately into the role of Parliament. As Professor Jackman said, the
Charter applies to the three branches of government, that is to the legislative, executive and judicial branches.
My question is directed to the Right Honourable Justice Lamer. I agree with you that the Supreme Court has
exercised restraint and I am satisfied with its rulings. I took part in one debate where the discussion centred on judicial
activism. I do not think that this qualifies as judicial activism. Rather, what we were witnessing was a dynamic
interpretation of the Canadian Charter of Rights and Freedoms.
I am interested in hearing your views. To my mind, we cannot speak of activism when a total of 450 decisions have
been handed down in respect of a particular piece of legislation or provision, along with 30 to 40 ultra vires
declarations. This does not strike me as judicial activism. Lending a dynamic interpretation to the law has always been
the ideal pursued by the Supreme Court of Canada.
Mr. Lamer: I was saying to a journalist yesterday, in the course of an interview, that you are called an activist when
you bring down a decision that a person does not like and that you are called dynamic and creative when you bring
down the contrary.
As my first example, I offered the Dagenais decision, where I created an intervener status in a criminal case, which
was unthinkable. Second, I offered the situation of a direct appeal to the Supreme Court of Canada. I did not read one
negative word in any of the press.
I can only agree with you because the Supreme Court has endeavoured to show some restraint. Let me give you the
example of a ruling with which I am quite familiar and in which the issue of ``reading in'' has truly been circumscribed.
We held that care should be taken not to add too large a group so that the government would be forced to allocate
funds to one area and in the process deprive another group of its rights, just for the sake of upholding the court's
One must understand that after the Charter came into effect there was a period of clean up. It was a new house and
there was sawdust everywhere that we had to clean up.
Departments of justice throughout the country were doing their own cleaning up. As an example, I cite the writs of
assistance that had existed for many years that I handed to the Royal Canadian Mounted Police. Legislation was
passed to abolish them. They knew they would never pass muster under a Charter challenge.
In the first 10 or 15 years of the Charter, there were a series of reverse-onus clauses in administrative law where there
was a penalty at the end. These had to be cleaned up. Sometimes the penalty was five years — in one case — where you
have reverse-onus clauses that were just for administrative convenience.
Many of these judgments have to do with reverse-onus clauses. Others had to do with the right to counsel, which
had become Utopian. Police departments had gotten into the habit of arresting people after hours — in other words,
when law firms were closed and when lawyers were not reachable. Those who were reachable, you did not want to
I agree with you. I think we exercised as much restraint. Of course, if you are against the Charter at the outset, the
first step you take under it will be disapproved of. There are people who are against the Charter, and I respect their
point of view.
I read recently in the paper, perhaps last week, that now the court is more deferential towards Parliament. That is
not so. The fact is that fewer laws are prone to be Charter challenged because people are being more careful. As we go
on, there will be fewer and fewer laws that will be Charter challenged. As we go on, there will be less and less
governmental conduct by officials that will give rise to section 24 remedies. Therefore, the Charter had that beneficial
effect of giving people the impression that the court is more restrained in its approach, but it is quite the contrary — the
court is getting less work.
There are other areas that will develop with the development of science. That is another question that goes beyond
Senator Beaudoin: Professor Jackman, you raised the point that the legislator should do his job. Some people say
that the court is going too far, but that is not my opinion; on the contrary, I think the court is very good. If there is any
criticism to be made, it is probably that in some cases we do not always have the courage to reach the appropriate
I remember very well the Special Senate Committee on Euthanasia and Assisted Suicide chaired by Senator Neiman
immediately following the Rodriguez case that was before the Supreme Court of Canada. The bench was divided five to
four in that case; the ratio was about the same in the Euthanasia and Assisted Suicide Committee. I am not surprised
about that at all. It is a difficult point. It is natural that we would be divided. However, the duty of a parliamentarian is
to do the job and to reach a conclusion. If it is a very difficult subject, one way or the other, it will end up in the
Supreme Court of Canada, because it is a difficult problem. Wherever you go, you can be assured that it will go to the
Supreme Court. However, that does not mean that we should not decide. I think we should decide. We should legislate.
Is that what you have in mind?
Ms Jackman: Essentially, the point I am trying to make is that when the Charter was enacted it spoke to the
legislative and executive branches. The court was simply the reviewing mechanism.
In the discussion we now seem to be having, it is as if somehow the Charter is above the courts. We have lost sight of
the fact that it was designed to make Canada more free and equal. As Justice Lamer has pointed out, the courts cannot
make Canada more free and equal. The legislator can make Canada more free and equal. The courts can improve the
quality of democratic decision making accepted at the most meta level. It is the legislator that has to turn its attention
to its own processes and see where exclusion continues to occur and to remedy that.
I gave the example in my initial remarks of the child tax benefit. That was meant to be the federal government's
major social policy issue of the 1990s, to combat child poverty. I do not know what parliamentarians knew or thought,
but certainly the executive branch, in enacting this legislation, knew, and they negotiated with the provinces essentially
to allow them to claw back the benefit from welfare-poor families. Welfare-poor families are as poor as working-poor
families. If Parliament did not know it at the outset, it knows now what is going on at the provincial level with the only
social program we still have at the federal level, and it has a duty to intervene to ensure that this does not happen.
I could give another example. I know the Senate gave rigorous scrutiny to the terrorism bill. A huge preoccupation
at court challenges, and this is an area of concern, is racial profiling. There is a legitimate concern that this will occur
under this legislation and that the legislation is silent. Surely the bill should have said explicitly that racial profiling was
not an acceptable practice in implementing the anti-terrorism legislation. The legislator has drafted the law in very
broad terms and left it to victims of rights violations to try to make their way into the court to somehow vindicate their
rights. For poor people, this is not a realistic option, and I would imagine for accused terrorists, it would not be either.
Senator Fraser: I would like to touch on something you referred to earlier, namely changes to our culture which is a
fundamental, very important consideration.
I have become increasingly concerned by some of the rhetoric that is mustered on a regular, sustained basis by the
critics not just of individual court decisions but I think fundamentally of the Charter itself, although they frequently
couch it as an attack on activist judges or whoever. I do not know how far this can go without ceasing to be the kind of
vigorous debate that a democracy needs and becoming a conditioning of public perceptions that can be damaging.
I know the polls say that a huge majority of Canadians favour the Charter. A huge majority of Canadians also
favour democracy. I would venture that 99.9 per cent would say in answer to a poll, ``Yes, I believe in democracy, and I
am glad and proud we are a democracy.'' If you were to ask the same Canadians, ``What do you think about
politicians?'' you would get a different answer. I say this as a former journalist more than as a current politician, but I
believe this is partly because the discourse has for so long just assumed that politicians are figures of fun,
incompetence, many corrupt, all lazy, self-seeking, under-worked, rejoicing in the public purse. Mind you, I also know
what the public thinks of journalists. A mythology exists that is not even questioned any more. I can tell you, having
come recently to this game, that none of it is true.
I am concerned, however, that something might start to happen to the judiciary similar to what has happened with
politicians. Very good people become reluctant to go into politics and practising politicians of high principle become
increasingly reluctant to stick their necks out and take leadership positions because of the quantity and quality of
vitriol that is dumped on them.
I should like any or all of you to comment on whether you see any danger of this happening in the judicial system as
an outgrowth of life with the Charter. What should we do about it? Am I overreacting? Should I not be worried?
Mr. Lamer: I have spoken out about this on a few occasions when speaking to judges. I have said that I fear the
popular judge and I fear even more the judge that wants to be popular.
The reason judges are the only ones in Canada to have the job protection they do — aside from senators — is to
enable them to do the right thing when it is highly unpopular. My fear reaches your concern, but from a different
There are approximately 4,000 judges in Canada. The vast majority of them will do the right thing even if it is
unpopular. What worries me is what they think the right thing is. We all have a subconscious, and a subconscious is
very sneaky. By definition, you subconscious causes your conscious to rationalize conclusions. Human nature being
what it is, one might rationalize a popular conclusion against a less popular or a very unpopular decision.
It is not so difficult when you work in Vancouver, Toronto or Montreal, or on the Supreme Court. However,
consider the judge who is a member of the Kiwanis Club in a small community that has just one golf course and must
hear a child molestation case. It is a one-on-one situation. That judge must decide whether he is satisfied beyond a
reasonable doubt that the event occurred. The credibility of both the accused and the child are not attacked in any way.
The subconscious of that judge might start working. He might worry that when he goes to the golf course or the
Kiwanis Club people will say, ``Why would the child say a thing like that if it did not occur?''
I spoke about judge bashing when I was chief justice. It might well occur that in certain types of cases the
subconscious of an honest judge will operate in the way you fear and that it will have the kind of effect it has on some
politicians. Some politicians become concerned that if they vote for or against a particular piece of legislation they will
not be re-elected due to the effect it will have on a percentage of their constituents.
I fear that the criticism will put pressure on judges to do the wrong thing. Unfortunately, we have had a few
examples recently. Thank God that science has helped us to release from penitentiaries people who were unjustly
You make a very good point. I continue to have this concern. This is why I spoke out against judge bashing so often
and so strongly and got bashed so often and so strongly for it. I will continue to do so now that I have recovered my
freedom of expression.
Mr. MacKay: I am not in favour of judge bashing, but I think there are some healthy elements to debates around
decisions, and they are very important. When people debate the substance of a decision, that is part of education about
human rights and the higher profile we spoke of. There are critics from all parts of the political spectrum and there are
people who respond.
Another group in society that has tenure, at least to some extent, in addition to senators and judges, is academics,
and they can express their views. In my view, there has been useful debate around decisions, debate that has raised the
level of understanding and consciousness among Canadians about very difficult issues.
With regard to abdication, it is important that legislators not abdicate to the courts all the difficult, hot political
issues, leaving them more vulnerable by so doing. Peter Russell said that the Constitution is too important to leave just
to lawyers, that we need to have rights protected also by the process of discussion. There is also a role for legislators in
not leaving the courts totally vulnerable in that regard as well.
Mr. Lamer: I should not want to be taken as being adverse to criticism. I quite often said that I welcome healthy
criticism. Judges who do not should welcome healthy and vigorous criticisms.
When I talk about judge bashing, I am referring to the judge in B.C. who, having acquitted a man of pedophilia, was
called a pedophile. Rocks were thrown through his window. His children were beaten. He had to have police
protection. That is what I am talking about. I am not talking about academic discussions and decisions. Frankly, half
of what is written is not read.
Ms Wilson: Why is the status of politicians so low? Elected people have to get re-elected; that is what it is about.
Quite often, they cannot do the right thing, as someone said, even when it is unpopular because they have to get re-
In the Senate, I have been surprised because, apparently, we are untouchable. I have often pondered what is the glue
in the Senate that holds people to their own parties, particularly when I know they are opposed to the positions for
which they must vote. It is still a question for me. I think that is what brings politicians into disrepute. Thus, a word to
the wise is sufficient.
Ms Jackman: I do think that is an excellent question because the fear, of course, is that the reason the Charter is held
in such high repute is that the state of the legislator is not. If judges fall into disrepute, you have to start wondering
what will be left.
The Charter is designed primarily to address the legislative and executive branches of government. In terms of the
disrepute in which politicians are held, the Charter has a lot to say. The Charter is designed to ensure that Canada is
free and democratic. If we look at the parliamentary and electoral process through the lens of inclusion, there are many
things that the legislature could do to rehabilitate itself among the electorate. We need only think of things such as
affirmative measures to increase voter turnout. If you have such a low number of people voting, it behooves you to
look at that and to consider what affirmative measures you can take in terms of enumerating or other incentives to
encourage people to vote.
Only the legislature can reform party-financing rules. Conflict of interest has been a difficult issue with which to deal
in recent months in terms of the perception of dishonesty. Again, these are self-governing regimes that only the
legislature can correct.
Concerning access to information, there was a rebel committee of the House of Commons that tried to beef up the
legislation. Again, both senators and members of parliament need to lend their weight to those kinds of measures.
The most perplexing one for me is the reform of political parties. Ironically, the Charter does not apply to political
parties because they are not part of the state. If not, what are they? In a sense, they dictate to the legislature and yet
they are completely immune from any kind of judicial review. Once again, if you scrutinize the practices of political
parties through a section-15 equality lens, you will find some pretty severe problems.
Only you, honourable senators, and your counterparts in the House of Commons are capable of doing anything
about this. In terms of all the public attachment to the Charter, you have every ability to take that mantle on to
yourselves and to use that goodwill to look at the some of the things that are undermining confidence in the public.
Mr. Foucher: Madam Chair, the fact that everyone wants to speak to your question shows it was a good one.
It is not only a question of court bashing, it is sometimes a question of human rights bashing. Defending human
rights is not always popular.
Defending minority rights may not always be a popular position, but it is a necessary pursuit.
The Chairman: Surely there is a role to play if it is judge bashing we are talking about. It has been stated by Senator
Beaudoin and others that the Charter has played a useful role in the whole culture of human rights. It seems to me that
there is a role for parliamentarians and a role in particular for the executive — and I look to the Minister of Justice
specifically — to ensure that when the public reacts negatively to a decision there be parliamentarians who have the
courage to intervene, along with the Minister of Justice, to indicate what the role of the judge was and why it was
In that regard, I refer to my own modest time on the bench in a very modest provincial court situation. If I gave an
unpopular decision, it was often the minister of justice who would say this: ``Whether we agree or disagree with the
judge is not the issue; the judge had the right to make the decision. If it was done inappropriately, there is an appeal
mechanism.'' The fact that the minister of justice would make such a statement to the press went a long way to educate
the public as to what kind of criticism is appropriate and what kind should not be tolerated.
If there is any judge bashing, I look to we parliamentarians to speak out about the role and the necessity to protect
the independence of the judiciary and to explain that process.
I often wonder about parliamentarians going after judgments or judges. However, I do not see too many
parliamentarians standing up to defend the role and responsibility of judges. Nor do I see parliamentarians taking the
responsibility to ensure that that continues.
Mr. Lamer: When it is done with parliamentary immunity, one would expect the member to step outside and expose
him or herself to the consequences of being wrong, or of wrongful behaviour. I think it sets a very bad example to use
one's immunity, and that includes judges, to criticize unfairly a decision, sometimes sincerely and other times for
There used to be a covenant between judges and members of Parliament that we did not criticize Parliament and vice
versa. I think that has gone out the window to a certain extent, or am I wrong?
The Chairman: I think you put it quite rightly when you said it has gone out the window to a certain extent. I think I
must defend parliamentarians and say that there are still some —
Senator Fraser: Most, the vast majority.
The Chairman: The vast majority has been silent. I have been encouraging them to speak out positively for
democracy, which means respecting everyone's role and their piece in it.
Senator Beaudoin: On the point of immunity, I do not think it is absolute. It is true that as parliamentarians we are
protected while we are in the chamber. However, that is not absolute. We have a certain code as to what is
parliamentary and what is not. There is a long tradition that says that, while we may agree or disagree with a decision
of the court, we do not criticize a judgment. We respect judgments because the legislative branch is immune in its area
and the judicial system, of course, is independent and has to be respected. I have always been of that view. We have no
absolute immunity. We have to be very careful because we have many cases where parliamentarians or ministers were
suspended because they did not agree with that code, written or unwritten, which says that we do not criticize judges.
We may agree or disagree with them.
Senator Jaffer: My first comment is with regard to judge bashing. I come from Uganda, where our chief justice
disappeared at the hands of Idi Amin, because he stood up to a dictator.
Judge bashing is an important issue. I think perhaps the worst case of judge bashing I have seen is with regard to
Justice Duncan Shaw in the Sharpe case. Parliament had not clarified the bill and left some areas for judges to
determine. Justice Shaw faced horrible and unacceptable abuse because Parliament had not done its job and the judge
then tried to do it.
During the terrorist hearings, the one thing I kept saying to myself as a member of a minority group was that, for
example, the internment of the Japanese cannot happen now because of the Charter. Professor Jackman, you are right.
We did not look at racial profiling, and that is something that communities like mine will have to face in the future.
I come from British Columbia. An issue that is dividing our community there that I would like reflections from all of
you on is that of referendum. In my opinion, Parliament is abducting its responsibility when it goes to the community
and asks the majority to define the rights of minorities. When people do that, they make themselves Charter-free; they
go around the Charter. In the meantime, there is terrible discord in my province. I would like to hear your views on
Ms Jackman: That is an interesting question. Often, using a referendum to determine public policy is held out as
direct democracy — the purest, most traditional form of democracy. However, once again, at the risk of repeating
myself, the guarantee of equality without discrimination related, for example, to race is one that applies to the
legislature as well. It is not just the courts that have the role of protecting disadvantaged minorities. The legislature has
The rights of First Nations are entrenched under section 35 of the 1982 Constitution Act. It is the Parliament and
legislatures of the provinces and territories that have undertaken the obligation to respect and promote these rights.
As you say, the notion of using a referendum to allow the majority to pronounce on the rights of a minority is
perverse. That is what section 15 is meant to protect minorities against. Regretfully, it will throw the issue back into the
courts, where it is the legislature that should have undertaken its constitutional obligations at the outset.
Mr. MacKay: I agree with Professor Jackman. It goes back to my point about definitions of democracy. The
Reference re Secession of Quebec has a useful list of four interactive principles of the Canadian Constitution, which
applies not just to the courts but to all branches of government. Those principles include the protection of minorities,
rule of law, federalism and democracy. I think that, while it may in one sense as indicated be democracy, it is not really
appropriate democracy, in my view, to find in the broader nuanced way that the Supreme Court of Canada has talked
to us about in the Quebec Secession Reference.
There are many political scientists, as well as lawyers, who talk about this definition, that democracy does not just
mean majority rule and perhaps never totally has meant that, but that is has to do with mutual respect. When I was
working on this paper, that was one of definitions that I found useful. It was a point that came through in a number of
court decisions, that democracy has to do with respecting dissidents as well as majorities. It seems to me that,
according to that definition, this might not be good democracy, especially depending on the degree of education
involved. These are highly contested issues, ones on which people often have different views without full education. I
think that is the other point. To actually engage in direct democracy by referenda requires as well proper education.
How can you really have a useful exercise of democracy unless you have informed decision making and informed
opinion on which to make a decision?
I cannot comment on that, but I know from dealing with Aboriginal issues generally that there are often great
misunderstandings on all sides of that divide as to what the proper situation is. Sometimes it is too simplistic to go to
direct democracy or referenda as the answer to complex problems.
Senator Jaffer: Besides education, there is, I am sad to say, an issue of prejudice, which is exactly what the Charter,
in my opinion, was trying to deal with. This is going around it in a way.
Mr. Foucher: I come back to my earlier point. You do not make referenda on human rights. We must focus on what
we are talking about here, and we are talking about rights. These are not subject to votes. They are rights. They are
properly interpreted by the courts, and they are put in place by legislative pieces.
Ms Wilson: I am inclined to agree. It is an abdication of the legislators when they do this.
When worries me is that one would think that Canada had never signed any international covenants that had
implications for this situation. It is not even part of the discussion. The connection between the Charter and the
referendum is completely lost. I do not know who will pick that up.
Senator Prud`homme: I happen to share totally the opinion of Dr. Wilson on the role of the Senate. I have been here
nine years. I really should have stayed in the House of Commons. I feel that we in the Senate are given, like judges,
total, absolute security. I am of the opinion that we do not use it. We bow too often to the wishes of the other side and
to the whips. That is not why the Senate was invented. Perhaps it will change.
It surprises me that the Banking Committee used to have 12 men, out of 12, but that the Social Affairs Committee
has nine or ten women. The committee here, after Dr. Wilson left, had nine members, seven of which were women. I do
not know if it is time to send a signal to the men. All the men here today — Senator Joyal and others — are volunteers.
Thank God we are allowed full participation. We need to realize that we can do more.
On the question of human rights — as you know, I like to believe that until we have peace of the Middle East I am
considered a champion of the Palestinian cause. I am extremely disappointed that people seem to have so much to say
on everything — sex, religion, sports — but when it is time to speak of a tragedy that may involve us all soon no one
has anything to say. To me, that is a basic human rights issue.
I think I just said what I had intended to say. If Mr. Lamer ever invites me to participate in public with him, and I
would hope I could, as we used to do 40 years ago.
I am of the strong opinion that our way of choosing our judges should remain as is. I would hate to see all judges
that are appointed to the Supreme Court having to come in front of the Senate to explain their views. We want to
appoint those who have the best judgment and not submit judges to scrutiny by members, as is the practice in the
The Chairman: That was a statement. I will now turn to Senator Cochrane.
Senator Cochrane: My concern has been to the disadvantaged. A recent study showed that 70 per cent of Canadians
believe that the Charter protects the rights of all Canadians. I was hoping that you would be able to comment further
on discrimination on grounds of the social conditions. Perhaps you can comment on the rights of socially and
economically disadvantaged Canadians? We have quite a large number of them. We do not know about some of them
because they fail to speak up and they fail to be recognized and lack confidence in speaking out. What measures are in
place to protect these types of rights for these types of people?
Mr. Lamer: I will return to what Professor Jackman said. She said that the Charter is primarily aimed at the
legislators and at the executive. This question arose when we were dealing with abortion, section 257 of the Criminal
Code. I was on the drafting team and I was on the team that struck it down. When you have a vacuum of legislation,
the court cannot fill the gap. The court can only pass judgment on a law that is there. If the law is not there, we cannot
read into the bulk of Canadian laws a law that will deal with poverty. We sometimes can read in a word here or there to
try to fix a law and make it constitutional rather than strike it down, but we cannot usurp the role of the legislators.
I am back to Professor Jackman's statement, namely, that it is Parliament that must start it, not the courts. If the
legislation that is enacted to address the problem of which you are concerned is not addressing it in a fair way, for
example, it is not respecting equality rights, then the courts can come in, perhaps, and read in a group. However, this
must be done carefully, because it cannot play around with budgets too much. There are other considerations that
must be taken into account. We do not necessarily have the expertise that is needed to make those kinds of decisions.
However, subject to that, we cannot fill the gap.
After the Morgentaler case, when this gentlemen came to us and said, ``You say that abortion is unlawful,'' we
replied: ``If we had a law, perhaps we could come to that conclusion. We cannot start saying that it is a crime to abort.''
Prior to 1892, common law judges could create crimes. They created a lot of the crimes. Since 1892, however, we
cannot, and that is a good thing.
Mr. MacKay: Courts cannot initiate; they respond to things brought before them. Turning to your point about the
disadvantaged — that is, people who most face discrimination and have human rights problems — and what we can do
to improve access, there are large questions on that issue. The Charter, for all its benefits, is largely inaccessible to poor
people, given the cost of going to the Supreme Court or even going to the first level. That is an important point that
leads to a few conclusions.
First, there is the importance of human rights commissions, which are more accessible. I applaud your committee's
report, where, in a number of cases, you recommended an increased mandate and resources. In my experience, they
often increase mandate but rarely resources. On matters such as dealing with the implementation of the anti-terrorism
bill, to look at issues such as racial profiling would be a useful to the Canadian Human Rights Commission.
Second, for a host of reasons, the courts and the Charter have not been able to deal with social conditions in a broad
way. If we add social conditions and the resources needed to respond to that, then you have access to that mechanism
from people who are most disadvantaged.
Third — and this will partly address your third point about the gap between Canada's international obligations and
our domestic implementation — one of the areas of human rights where we have the largest gaps is in matters of social
and economic rights. It is not particularly realistic to expect the courts to do the major part of that. It goes back to
legislation by adding things like social condition to the Charter and to the Canadian Human Rights Act and then
giving the resources to respond to that.
Senator Cochrane: Can the courts do anything in enforcing these social and economic rights?
Mr. Lamer: Let me stick my neck out. There are a certain number of judges who will be retiring and there will be
new appointments. I am talking about the replacements.
Section 7 of the Charter, which deals with the security of the person, has been addressed briefly by me, but very little
by others. Depending on what meaning is given to ``security of the person,'' the Charter might reach out to some degree
toward recognizing the problem you are raising and finding jurisdiction to make findings in the field of economics of
poverty. Presently, however, security of the person has not been interpreted that much.
You mentioned the case. I opened the door a bit. It took all of my weight to open it slightly, to say, ``There is an
economic problem here.'' I referred to the judge having the right, in the name of the security of the person of the
mother and the security of the person of the child, to order the government, in some form or fashion — and, you
mentioned legal aid; it is not necessarily legal aid — to pay for a lawyer for that person. That is tied into the right to
counsel, but it does touch the right to counsel for poverty. In other words, it touches upon legal assistance. I do not
want to use the term ``legal aid,'' because it means various systems that are in place right now. That is where the
Charter might reach out and give some help to the people you are thinking about.
Ms Wilson: So much of this must be seen in the political context. I never saw Canada jump so fast, with Bill C-36, to
honour all the UN security resolutions of the last decade, which no one had heard of until then. We have had the
economic, social and cultural convention for many years, and yet it is not known. It has not been implemented; and I
do not believe that it has affected domestic law. Hence, it has not been invoked, and that is a political decision made on
the basis of where the votes are.
Ms Jackman: You raise an important issue that is almost to the point of being a rule of law issue. We have a
Constitution that seems to leave out many people. Chief Justice McLaughlin used the expression ``constitutional
castaways.'' When you consider low-income people, it makes you wonder if perhaps that is what they are —
constitutional castaways. It is rare that no action is taken, that no law is in place and that the state does nothing. It is
rare in our society to have no state intervention.
Usually, inadequate or discriminatory intervention occurs. The problem with these cases before the courts is that the
Attorney General, who is accountable to you as members of the executive, is essentially instructing his employees —
the legal counsel who act in these cases — to violate rule of law principles and to argue that the Charter does not apply
in the area of social and economic policy. This is a frequent argument of the Attorney General of Canada.
At the international level, the same thing is happening this week in Geneva. The Canadian government, under the
Minister of Foreign Affairs, who is accountable to you as a member of the executive, is basically saying in the debates
around the introduction of an optional protocol under the Covenant on Economic, Social and Cultural Rights that
these rights should not be justiciable — rights that would allow Canadians to go, if they are not satisfied domestically,
to the international level to complain about rights violations. The government is saying that these are just hortatory
aspirations and that they are not rights. This is completely out of step with the way in which social and economic rights
are being viewed, even in South Africa, which we would consider a poor country.
The Supreme Court of South Africa has recognized a right to housing. Can you imagine? That is happening in a
country where there is such a lack of resources, and yet here in Canada the Attorneys General are telling the judges
that these are not rights, they are aspirations, and this is policy.
The Chairman: For 20 years we have said that the Charter of Rights and Freedoms has been viewed more from the
court perspective than from the parliamentary perspective. Led by the Hon. Antonio Lamer, you said that the Charter
has created a cultural awareness of human rights.
Is it too optimistic to believe, 20 years later and having examined the situation with the courts, that the focus will
turn on parliamentarians and on the executive to deliver more of the needs in respect of human rights? Will we always
be looking at a more narrow, legalistic court-driven process for human rights? This committee has been struggling to
try to expand human rights to include education. If, in fact, there is a culture of human rights, surely communities,
parliamentarians and everyone will work towards achieving that kind of fair society, which we want. Therefore,
education is extremely important.
The other is, of course, good public policy. It should be in place with all parliamentarians reflecting on these issues
before we have to turn to the courts. It has troubled me that we have so often heard the phrase: ``If we are not right,
you can take us to court.'' We have been encouraging people to reflect on their personal responsibilities towards the
issue of human rights. It does not matter whether you are an ordinary citizen or a parliamentarian or a judge — we all
have a role and a responsibility towards human rights.
That is where I personally hope that the first 20 years of the Charter are indeed behind us so that we can now have a
broader reflection and responsibility towards delivering human rights in Canada.
Ms Wilson: Who decides what the role should be of international covenants in Canadian law? How is that decided?
The Chairman: Ms Wilson, as you know, that is one of the six questions that we framed for the reference of this
committee. I know that you will be here to remind us that we have to obtain the answer to that question during our
We will have to struggle with who decides and how. Our role, as a parliamentary committee, will be to give
Parliament and the executive suggestions and recommendations about how they might tackle that issue. However, we
do not have the answer today. In fact, I was struggling with that unknown in my comment.
Ms Wilson: The Supreme Court has no role in that.
The Chairman: I believe that everyone has a role. That is what I am trying to say. We have defined some of the roles
for the judiciary, but we have not defined as many roles for Parliament to date. This committee is playing a role in that
process. I am hopeful that the 20 years just past are instructive to all of us to remind us of our responsibilities towards
delivering human rights, whether it is civil society or a parliamentary or executive role. We need to move to a maturing
of human rights reflection in the next 20 years.
Mr. MacKay: I will make a fairly modest suggestion. In the area of education, it is my view that the work of the
Supreme Court of Canada, and the courts in general, has been impressive in dealing with the difficult conceptual area
of equality. That is regarded to be the case throughout most of the international community. Canadian cases are
examined in defining the concept of equality and they are recognized in the law cases, perhaps the most complicated
part of the Charter.
The communication of that fairly sophisticated, and perhaps legalistic, understanding of equality has not happened
to a broader community. One role that the legislature might play is that of educator by using such information to teach
more broadly about what we mean by the ``concept of equality,'' about the differences between formal and substantive
equality and that same treatment does not always mean equality. For many of us, these things are second nature, but
they are not for someone in a human rights commission or when you are talking to the general public — that is not
The court has acknowledged, through a series of cases, that they have had to evolve their understanding of the
concept of equality. It has a long way to go in terms of understanding how complicated and conflicting those things
are. The educational process developed in the courts could be used further at the executive and legislative level to
educate legislators, senators and the general public about what we mean by ``equality'' in Canada. That is a critical
question when talking about human rights.
In a culture of human rights, do we all think it means the same thing? No, we do not because we have different
views. At least, we will have some minimal understandings of what human rights mean.
Ms Jackman: I believe that the Supreme Court of Canada has given some useful instruction on this question in the
Baker case. It clearly stated that while it is for Parliament to implement international treaties the Executive could sign
anything it wants to sign knowing that it can act with impunity at home. Unless the legislature implements, either at
the federal or provincial level, nothing can be done. That is why we have a hypocritical stance on human rights
In Baker, the court said that not only must the Canadian Charter be interpreted consistently with our international
human rights obligations, but that legislation and administrative action must conform to our international human
rights obligations. Even in the absence of implementing legislation, whether federal or provincial, the obligation to
respect the undertakings still exists.
Senator Fraser: In my view, as a former editor, the clarity of writing of Supreme Court decisions, for a lay reader,
has improved dramatically over the past 20 years. This may not seem to matter much to lawyers. However, if we are
talking about the ability for ordinary Canadians to be able to understand what it is the courts are doing, I think this is
a major element. For example, it enables newspapers to publish extracts of decisions rather than some reporter's
summary of the decision. The citizen is able to read that and feel they understood what was said. After that we may
agree or disagree, but that is a separate question.
In the case of the Quebec Secession Reference, it was helped immeasurably by the fact that anybody who sat down
and read that document could understand what it said. I do not mean that it was easy stuff — some of the reasoning
was of high order — but it was so well written that if you took the time to walk through it, you understood it. Use
whatever influence any of you has to urge judges to practice clear writing.
Professor Foucher, I was struck by your exchange with Senator Jaffer on referendums. There were the Manitoba
referendums on language rights, which were inequitable, divisive and profoundly wrong. You warned that what we
sometimes see is an actual attack on human rights. Do you think that tendency is increasing or decreasing?
Second, I would like each of you to give me, shortly if possible, who you think is a constitutional castaway that the
legislators should be looking at — not in terms of opening the Constitution, however, but in terms of acting in other
ways. I suspect Professor Jackman will say the poor.
Mr. Foucher: Thank you.
Mr. Foucher: Regarding the first question, when everything is going well and funds are available, the attack on
human rights eases somewhat. However, the attack intensifies when the climate is uncertain, when resources are scarce
or when problems begin to surface.
Professor Julius Grey remarked during an interview that when people feel threatened, that is when they must rise up
and defend human rights, even if this is an unpopular and difficult stand for them to take.
During troubled times which have plagued humanity in all regions of the globe, those who have risen up to defend
human rights are often unpopular and their voices are not heard. This is not a reason, however, for people to remain
passive. There is not much more that I can say on the subject.
On the issue of referenda, we saw the outcome of this process in Manitoba. There was talk of holding a referendum
on the Nisga'a Accord in British Columbia. That too would have had disastrous results. The issue of minority rights
must not be put to a referendum.
Mr. MacKay: Regarding the castaways, it is hard to argue that the poor would not be in that category, but I would
define that broadly in terms of people who cannot afford to pursue Charter cases or do not have the knowledge or
resources to pursue human rights commissions. That is more than the poor as defined by the poverty level, it is the
majority of Canadians. We can get carried away as lawyers and judges and legislators as to how many people use this
machinery and how many are even aware it exists. It is a large category.
Ms Wilson: I would suggest elderly, poor Aboriginal women.
Ms Jackman: I guess it is quite predictable. It has been my life's work to illustrate the problems low-income
Canadians face, and they come in many complexions. Agricultural workers were the recent basis of potential
discrimination before the court due to their total exclusion from labour protection legislation. Welfare mothers and
other welfare recipients are another case at present. As Professor Foucher pointed out, when we are insecure we like to
blame someone and now governments bash welfare recipients and the poor.
At this point, I must pitch the program I am involved in — the Court Challenges Program. It is unique in Canada.
The federal government, through an independent fund and organization, provides litigation funding to disadvantaged
individuals and groups to bring Charter challenges. There are huge economic obstacles to getting to court, but the
Court Challenges Program has been an invaluable means of doing that. When you look at some of the most important
decisions the Supreme Court of Canada has rendered, often the decision is better for the presence of intervenors that
have been funded through court challenges.
Senator Joyal: I had the benefit of reading the paper that Professor MacKay had prepared and sent to the clerk of
the committee, and I appreciate that. I would like to say to the Hon. Justice Lamer that I have read the writings and
speeches that he made during his tenure as a member of the Supreme Court of Canada.
I wonder if in fact the courts are not used by the politicians and that we are not, in fact, blaming the court for what
we asked them to do on our behalf. That is a danger of drafting the judges into the political arena.
I will give you three examples. The government of Alberta, in the Vriend case, adopted legislation to give way to the
judgment of the Supreme Court of Canada. The Ontario government did the same thing following the decision of M v.
H, which is a difficult decision. The federal government did the same with the Quebec Secession Reference.
When the politicians take that route, there is a risk for the democratic life of the country. When there is a difficult
situation, there is a tendency to shift it to the court. A comment was made in the last part of our session in reference to
the anti-terrorist bill. It was said that we should adopt it, and if it is not proper to the Charter, the court will tell us. In
other words, there is an abdication of the role of parliamentarians. It goes a very long way. That was said. No one in
the press or anywhere else commented on the risk of that statement.
If we have had 20 years of evolution — that is, of the living tree, as Justice Dickson said of the Charter — then I
should say humbly as one of those who was directly involved in drafting the Charter that there was conviction that, in
respect of section 15 of the Charter, we could not see the end of it. We could not determine boundaries for the
definition of what we meant by section 15.
The danger is that because there is no opportunity to have a constitutional discussion on the Charter we are back to
my first question. We are sending back the recognition of emerging rights to the hands of the courts instead of keeping
it for ourselves as parliamentarians, be it at the federal or provincial level. Canadian society cannot live in a
straitjacket. The Charter reflects the evolution of Canadian society. That is the way the court has seen its role in
exercising the difficult balance of judgment in the various cases it has had to address.
When thinking of the 20 years ahead of us, we should ask ourselves what we should be doing to protect the
institutional framework of our country. The most important aspects of our existence as a democratic society are the
rights and freedoms that we enjoy individually in the context of a society that is praised in the media as being one of the
best examples around the world and that we do not need to do more. It is easy for us to pat ourselves on the back and
say: ``Everything is perfect. There might be little things here and there but, in comparison with the others, we are a lot
better off.'' How can we address the fundamental problem of politicizing the courts by blaming them for unpopular
decisions or by shifting to them the responsibility of recognizing the evolution of the Canadian society, because we as
politicians feel that we cannot deliver on this?
Mr. Lamer: I have seen more hot potatoes in the Supreme Court than in France. It became evident to us that,
whenever an issue was going to have an effect on the electorate and in turn have an effect on the elected or on
determining who gets elected, even though the government was in favour of a given decision, they left it to the court to
decide. The government was then able to have two speeches, depending on whom they were talking to, one saying,
``That is a great decision,'' or in some other riding saying, ``Oh well, there is the court again.'' We have seen this happen
more often than it should happen.
This matter should be raised in the House. When legislation is obviously suspect — there has been legislation that
was suspect at the outset but passed by Parliament, and Parliament said, ``We will let the courts handle it and hide
behind their gowns.'' There is nothing the courts can do about it. When an appeal court or a trial court has not done its
duty, the higher court has the power, in some provinces in certain types of cases, to send the matter back and say,
``Deal with that issue.''
However, we cannot do that to Parliament. You are going to have to do it yourselves. This house can at least raise
the issue, but the court cannot. The court is bound. If there is a Charter challenge to a piece of legislation, the court has
a duty. It would be remiss in its duty if it did not answer the question. We have no choice. I must recognize that the
courts have been used by the elected as a form of abdication. As a result, it is true that, to a certain extent because of
this, there is a certain degree of government by the judges. Ultimately, it is government by the government hiding
behind the judges.
Mr. MacKay: While I agree the courts cannot send statutes back to the legislature and tell them to deal with the
issue, they have on occasions — I think it is a useful thing — made suggestions about whether legislation might be
redrafted in a way that it makes a proportional part of this dialogue. That is not the same thing but it goes part way in
that direction. That is one small response.
Mr. Lamer: On three occasions over 20 years I have told the Minister of Justice in a subtle way, I hope — maybe it
was too subtle — that the section dealing with self-defence is an absurdity. It has not changed. Back in a 1975 report
entitled Our Criminal Law I said that the self-defence sections of the Criminal Code are an absurdity. Then I repeated it
three times as a judge in the Supreme Court of Canada, once as a chief justice, and nothing has happened.
Ms Wilson: If that is subtle, I would like to hear you when you are forthright.
Mr. Lamer: When you are a judge you have to be subtler than when you are an ex-judge. Judges cannot be critical of
Parliament behaviour. It is not right. We were talking about that earlier. However, we sometimes send messages
saying, ``The elected might want to have a closer examination of this area,'' or something like that. That should send a
message. It does not always work, but sometimes it does. In the RJR-MacDonald tobacco case, Chief Justice
McLachlin, in striking down the law, made suggestions as to how the law could be drafted and crafted in a manner that
would pass muster, and did. So sometimes it works.
However, I suspect that Parliament heeded to the invitation, because it was a vote-getting issue. Self-defence is not
really the kind of topic that will excite many people, except the mob. I agree with Senator Joyal.
I agree with Senator Joyal. On occasion, the government hands the Supreme Court and other tribunals a hot potato.
Senator Jaffer: Professor MacKay, did you wish to add something to my query on the referendum?
Mr. MacKay: I said most of what I wanted to say on that. Perhaps I can take the time to say that one interesting
illustration of Senator Joyal's point about abdication would be Aboriginal rights. Section 35 specifically set up federal-
provincial conferences to try to define Aboriginal rights, which did not take place. Then the Supreme Court of Canada,
in a series of cases, had to decide Aboriginal rights and was criticized for what they decided. It seems to me that that
may be one of best examples of a kind of abdication, and this is a different version, that there are tough decisions that
have to be made on the protection of Aboriginal people that may not be popular in certain circles but still should be
made. I do not think abdicating is the way to do that.
Mr. Foucher: I want to respond quickly to Senator Joyal's comments. We have witnessed the phenomenon that you
described in the matter of French language education rights in Summerside. The PEI government maintains that the
Supreme Court is at fault in this matter.
Having said this, the courts are beginning to show some signs of impatience. Recently, the New Brunswick Court of
Appeal ruled in the Charlebois case that the City of Moncton had one year to translate its bylaws into French. The
Court called upon the government to pass legislation to implement bilingualism at the municipal government level.
If parliamentarians fail to heed the call of the courts, the latter will have no choice but to cautiously become more
proactive. This needs to be monitored closely in a democracy. For this reason, parliamentarians must assume their
responsibilities immediately and move as quickly as possible to amend legislation when a ruling is handed down by the
Mr. Justice Lamer mentioned France. You stated the problem was the lack of a forum and you also alluded to
constitutional problems. From the outset, I think we have been focussing on preventing constitutional violations rather
than on rectifying irregularities. Do we need a constitutional panel to review proposals and to issue independent
opinions before legislation is enacted?
Senator Fraser: In order to avoid a long legal explanation, where can I find in what way the sections on self-defence
are ludicrous? Where are the decisions?
Mr. Lamer: I do not remember the name of the decision, but I know this: The problem is that the aggressor, if
aggressed in self-defence by the aggressee, the aggressor is in a better position than the aggressee. Beverley McLachlin
and others tried to fix it. I got a majority not to fix it because, in my respectful view — and I respect the other views —
we were creating more problems elsewhere. Courts are not equipped to rewrite four or five sections. If we could have
accomplished it by taking out a word here or putting in a word there, we would have done it. The short answer is that it
makes no sense that the initial aggressor be in a better position, when aggressed in defence, than the initial aggressee.
The Chairman: I would like to thank all of our panellists and the senators for contributing to the discussions on the
20th anniversary of the Charter of Rights and Freedoms. We are all very justly proud of the Canadian human rights
record, but what I think this day has shown us that the Canadian approach to human rights is not to sit very
comfortably in our position but to continue to question and reach for something that is more attainable and more just.
Therefore, I think that the five panellists have really taken us into areas that I had not even thought about when we
were planning this section, and I thank you for doing that. It has opened our horizons to infinite possibilities for
parliamentarians in their roles and responsibilities in human rights, and it has challenged this committee to address
some of those concerns. I hope that the panellists will continue to challenge us and will continue to read our reports
and to give us their advice from time to time.
I thank the senators for their questions and waiting on the list for so long. We will not take 20 years to talk about
the role of parliamentarians and their responsibilities, as we have already identified that as part of our reference. I
know that Senator Fraser, as the new vice chair, will ensure that we address those issues that we put into our reference,
and that Senator Wilson, who has left us, will continue to prod our conscience to get the job done very quickly, with no
nonsense and no time gaps.
Again, I thank each of you for being here and contributing to our work.