WOMEN, HOMAN RIGHTS & THE CONSTITUTION
Submission of
the Canadian Advisory Council
on the Status of Women
to the
Special Joint Committee on the Constitution
November 18, 1980
Canadian Advisory Council
on the Status of Women
Conseil consultatif canadien
de la situation de la femme
Box 1541 Station B. Ottawa K1P 5R5
CP
1541 Suce B. Ottawa K1P 5R5
-
We welcome
1
this opportunity
to place before
you these submissions on the Proposed Resolution for a
Joint Address to Her Majesty the Queen respecting the
Constitution
of
Canada.
Constitution
is a significant landmark in the history
of our nation.
Patriation
We hope
that
this
of
the
Canadian
expression
of our
concerns and interests will aid in your deliberations.
The Canadian Advisory Council on the Status
of
Women
was
recommendation
created
made
Status of Women.
by
in
the
1973,
Royal
pursuant
to
Commission
on
a
the
It has four full-time members and 27
part-time members chosen from all parts of Canada, with
a
varied
background
concerns.
Its
government
concern
professional
mandate
and ■ the
to women
of
and
is
public
and
volunteer
to
bring
before
the
matters
of
interest
and
to advise
the Minister
on
such
matters relating to the status of women as the Minister
may refer to the
Council
appropriate.
furtherance of
In
or as
the Council may
deem
its responsibilities,
the Council has published over sixty studies, including
briefs and comments on the federal legislative program
in
areas
of
appointments,
will
be
human
and
affected
rights,
criminal * law,
Indian
women*
by
proposed . Charter
the
—
all
federal
areas- which
of
Human
Rights and Freedoms.
In
recent
months,
we
have
been
devoting
considerable attention to the process of constitutional
1
See attached list of current Council publications.
2
renewal
in
Canada.
This
summer,
thirteen studies on Women and
to
inform our
own members
we
commissioned
the Constitution,2 both
and
also
to encourage
the
women of Canada to become involved in this issue which
has
a far-reaching
generations
impact on our
to come.
Some of
lives
these
and
papers
those of
in
their
original or summary form have been widely distributed.
We have received over eight thousand
parts
of
the
nation
in
response,
letters from all
a clear
sign
that
Canadian women feel themselves vitally affected by the
present
constitutional
developments.
Although we do
not claim to be speaking as the direct agent of those
women who have made their views known to us, by letter,
phone, and in person, we are satisfied that our remarks
here
today
reflect
the
concerns
which
have
been
expressed to us.
Our
submissions
are
directed
solely
the proposed Canadian Charter of Rights
toward
and Freedoms,
Part I of the Constitution Act, 1980.
We wish to begin by emphasizing that we are
in
favour
of
constitution
freedoms.
signal
and
the
principle
protection
for
of
entrenching
our
basic
in
our
rights
and
In the first instance, the Charter will be a
guide
to
legislatures.
It
is
highly
desirable to guarantee that certain fundamental rights
and
or
liberties will not suffer legislative curtailment
interference.
As women,
with legislated inequality.
2
we are only too familiar
We know only too well that
See attached list of Council studies.
3
our
present
Bill
of
Rights
is
unable
to
stop
discrimination when it is embodied in legislation.
We welcome as well the fact that the Charter
of Rights will apply to the provinces and territories
and
to
the
federal
government.
The
have
affirmed
provincial
governments
commitment
to fundamental
publicly
values during
incumbent
their
recent debate
on constitutional renewal.
We are aware, however/ that
governments
a
power.
do
Past
not
have
experience
has
guarantee
shown
of
that
perpetual
the
elected
governments of-provinces are certainly not immune from
committing breaches of our liberties.
At
role
in
present,
determining
the
the
courts
meaning
have
a considerable
and
the
constitu­
tionality of legislation, by reason of their power of
interpretation
and
of
their
role
as
arbiters
of
the
Constitution.
There has been concern expressed about
the amount of power which would be given to the courts
by an entrenched charter:
it has been said that they
would be called upon to play a greater political role
since they would be interpreting the general principles
of
3
any
constitutional
charter.^
There
is also
some3
A helpful exposition of' the problem is found in
Paul
Weiler,
In the
Last
Resort
(Toronto,
Carswell/Methuen^ 1974), at page 213.
He states
that in the administration of a Bill of Rights
"... the
judges
are
faced
with
essentially
open-ended moral categories into which they must
pour precise meaning and content.
In this task
they cannot rely extensively on legislative or
administrative
definitions
,because
these
are
precisely
the bodies
from which originate a
definition that are under examination".
4
concern
that
the
courts
have
not
demonstrated
an
ability to give satisfactory meaning and content to the
freedoms
and
rights
stated
in
the
Canadian
Bill
of
Rights and equivalent provincial legislation.
In our view, it is of paramount importance to
ensure
that
provide
the
such
wording
clear
used
in
the
directions
to
judges
cannot possibly misinterpret
Charter
will
that
they
the intended content and
meaning.
We wish to stress, however,
that our support
for the principle of entrenchment does not mean that we
approve
of
every .aspect
Rights and Freedoms.
past
about
the
of
the
proposed
Charter
of
There has been a question in the
Courts*
capacity
to
strike
down
legislation it might find contrary to the standards in
the
Canadian
Bill
entrenchment,
of
Rights.
We
think
that
in particular Section 25 of the proposed
Charter, makes it clear that the Courts may render such
legislation inoperative.
Whether they will depends on
their view of the standards
whether
anyone
qualitative
about
change
unless
standards
can
of
we
be
to be applied.
satisfied
that
We doubt
a
complete
in our Courts1 approach will
put
equality
in
the - Charter
against
which
new
the
and
come
strong
Courts
will
test legislation.
Section 15
This
guarantee
of
section is
what
the
"Non-discrimination Rights".
intended
title
to
be
the
refers
to
main
as
We do not think that the
guarantee is strong enough, for a number of reasons.
5
The first clause of subsection 15(1)
states
"Everyone has the right to equality before the law..."
In cases involving section 1(b) of the present Canadian
Bill of Rights this phrase has been interpreted by our
Supreme
Court
of
Canada
administration
of
the
to
mean
law".^
It
"equality
in
does
prevent
not
the
inequality that is built into legislation, as was only
too clearly shown in the Bedard and Lave11 cases.5
itself,
guarantee.
then,
this
phrase
is
Because the reference
not
an
By
adequate
to "equality before
the law" in section 15 of the Charter is accompanied by
a phrase, different from that which
accompanies
it in
section 1(b) of the Canadian Bill of R i g h t s , w e must4
5
4
Mr. Justice Ritchie, in Attorney General of Canada
y. Lavell? Isaac v. Bedard, [1974] S.C.R. 1349, at
page 1367. Professor Baines refers.to this as the
"rule of law" principle of interpreting
the
equality before the law guarantee? see B. Baines,
"Women,
Human
Rights
and
the
Constitution”,
prepared for the CACSW, October, 1980, at p. 30.
She has identified four other principles employed
■ by the Court to interpret the guarantee ? see pp.
30 to 45 of her paper for a discussion of them.
They are the "Worse consequences" principle first
enunciated by Mr. Justice Ritchie in R. v.
Drybones, [1970] S.C.R. 282 at p. 297; the "valid
federal objective principle" developed by Mr.
Justice Martland
in Ft. v. Burnshine, [1975]
S.C.R. 693, at pp. 706 to 708? the "relevant
distinction principle" developed by Mr. Justice
Pratte and referred to by Mr. Justice Ritchie in
Bliss v. A.G. Canada, [1979] S.C.R. 183, at p.
192? and the "prohibited classification principle"
employed by Mr. Justice Laskin, as he then was, in
his dissenting reasons in Lavell, [1974] S.C.R.
1386 to 1387.
~
5
Attorney~General of Canada
Bedard, [1974] S.C.R. 1349.
5a
"Equal protection of the
"protection of the law".
v.
law"
Lavell;
Isaac
instead of
v.
simply
6
carefully examine
this
new formulation see whether it
can avoid the unacceptable interpretation which section
1(b) gave rise to.
to
the
The goal of the section, according
Minister
of
Justice,
discrimination on the basis,
is
to
"wipe
out"
for example of sex, race,
colour or ethnic origin.67 That, then,
is the standard
against which its terms must be measured.
The second part of subsection (1) guarantees
"the equal protection of the law without discrimination
because
of
religion,
race,
age or sex".
our present
only
national
Canadian
that persons
the law".*7
the word
or
ethnic
colour,
This language is a change from
Bill
are
of
Rights, which
entitled
provides
to "the protection of
There was a particular reason for adding
'equal* to the guarantee.
elaborated
origin,
upon by
the government
The purpose is not
in connection
with
the present Charter, but we can see what it is if we go
back
to remarks
made
by
the
Minister
of Justice
in
1978.
In
Bill
C-60,
1978,
the
the
federal
Constitutional
government
Amendment
introduced
Bill,
1978.
6
Notes
for
a speech
by the Honourable Jean
Chretien, Minister of Justice, House of Commons,
October 6, 1980, (Ottawa, 1980), "Constitutional
Reform", p. 15.
7
Canadian Bill of Rights,
1970, Appendix III.
s.
1(b).
See
R.S.C.
7
Like
the present proposal,
this earlier bill provided
for "equal protection of the law”.®
The
Justice,
could
same
Honourable
stated
mean
that
protection
that
Otto
"equal
Lang,
then
protection
"every
individual
under
the
law
discrimination on any basis".
Minister
of
the
of
law"
is entitled to the
without
unreasonable
He further stated that
the guarantee would mean "that a law cannot apply in a
discriminatory
manner
unless
such
discrimination
is
found to be justifiable in thé community's interest on
the basis of a reasonable classification test".^
The
significance
pointed
out
similar
to that of
States
by Professor
this
Baines,
approach
By
the
drafters
to encourage
has
using
the 14th Amendment
Constitution,
Charter are hoping
of
of
of
the use
been
language
the United
the
proposed
in Canada of
American jurisprudence on "equal protection"♦
We
have
no
addition of one word,
confidence
that
the
"equal", will signal our Courts
that they should adopt American jurisprudence.
the
Supreme
Court
of
simple
Canada
has
refused
So far,
to
adopt
American principles when interpreting our Canadian Bill
8
Constitutional Amendment Bill,
Commons, June 1978, section 6.,
1978,
House
of
9
0, Lang, Constitutional Reform:
Canadian Charter
of Rights and Freedoms, Canada, 1978, p. 8.
10
Op.cit,, note 4, p, 37.
8
-
of
Rights.*!
effect
of
argument
The Justice
the
and
change
evidence,
-
Minister’s opinion
cannot,
be
under
cited
to
our
the
of
the
rules
of
Court
in an
that
simply
attempt to persuade it.
Furthermore,
resorting
to American
we
do
not
think
jurisprudence
will
necessarily
ensure a vigorous and effective section 15.
We can appreciate why
might be seen as desirable.
great
deal
of
merit.
To
the American approach
Its basic features have a
begin
with,
the
American
approach to equal protection ensures equality not just
in procedural rights but also in the substance of the
law.12
Under
the
present
interpretation
of
the
Canadian Bill of Rights only equal procedural rights —
11
Curr v. The Queen, [1972] S.C.R. 889, Mr.
Justice Laskin, as he then was, had to consider
arguments that section 1(a) of the present Bill of
Rights dealing with "due process" should be read
in the light of American jurisprudence on the 5th
and 14th amendments.
In a well reasoned argument
at [1972] S.C.R. 898-902 he rejects the argument,
in part, because the Bill of Rights provides a
different
context
for
s.
1(a)
than
that
surrounding the 14 th amendment.
In the havell
case, he rejected 14th amendment jurisprudence on
equality before the law on the ground that the
Canadian Bill of Rights offered more explicit
guidance on the point:
[1974] S.C.R. 1349, at p.
1386. M. Justice Ritchie in Lavell simply denies,
without elaboration, that s. 1(b) is "effective to
invoke the egalitarian concept exemplified by the
14 th
amendment
of
the
U.S.
Constitution
as
interpreted by the Courts
of that country":
[1974] S.C.R. 1349, at p, 1365'.
12
O p . c it ., note 8, page 5.
9
"equality
in
insured.
the
We
administration
approve
of
the
of
the
law” —
attempt
to
are
guarantee
equality in the substance of the law as well as in its
procedure.
A
American
second
approach
most
to
valuable
equal
feature
protection
is
of
the
the
basic
recognition that making distinctions between groups of
people
is
process.
persons.
bases
for
an
inevitable
Not
all
laws
part
apply
of
or
the
can
legislative
apply
to
all
On the other hand, it is recognized that some
drawing
some are not.
these
distinctions
We do not,
are
for example,
proper
and
protest when
members of the judiciary are denied the right to vote.
We
would
prevented
protest
unemployed
Among
the
persons
were
improper bases
for
some are more improper than others.
jurisprudence
U.S.
all
from voting.
distinction,
the
if
developed
around
Constitution
has
the
14th
The
Amendment
included
methods
to
for
determining which bases are improper, and for assessing
the level of impropriety.
Roughly speaking, the assessment method works
something
like
this.
On
the
one
hand,
a basis
for
drawing distinctions in law may be seen as "invidious"
or
"inherently
classifications
suspect”.
are
subject
Laws
to
strict
only a showing by the government
state
interest"
would
justify
based
on
such
scrutiny,
of some
and
"compelling
legislation
in
which
persons are categorized on that basis.
In the present
state
is regarded
of American
jurisprudence,
such a suspect classification.
race
as
10
On the other hand there
distinction
which
are
not
are
those
inherently
bases
suspect.
of
In
determining the validity of legislation based on this
kind
of
distinction,
"reasonable".
between
the
If there
Courts
sometimes
chosen
the courts will
called
the
whether
is a reasonable
the classification
the legislation,
ask
and
is
relationship
the purpose of
uphold
reasonable
it
it.
This
classification
is
or
reasonableness principle.
This test is not a very
strenuous one.
It has been pointed out that between
1937
and
1970,
the United
States
Supreme
Court
used
this test to sustain the constitutionality of all but
one
state
protection"
statute
challenged
clause . ^
under
Earlier in history,
regarded as a classification which
on a "reasonableness"
above,
the
basis,
"equal
‘race1 was
could be supported
although,
as pointed out
it has since been classified as "suspect",
and
made subject to stricter scrutiny.
We
can
"reasonableness"
"inherently
suggest
test
suspect"
to
shows
that
holding
an
moving
a
from
a
classification
increase
in
societal
disapproval of the sort of discrimination involved.
This relatively sophisticated approach to the
assessment of legislation appeals to us.
of
Justice
Minister
inclination
to adopt
13
Lang,
quoted
only one part —
The remarks
above,
and
show
the
an
least
William E. Conklin,. In Defense of Fundamental
Rights, (The Netherlands, Sigthoff and Noordhoff,
1979) p. 291.
In­
effective part,
at that —
protection" developed
of
the approach
to "equal
in the United States.
We think
that this would be a mistake.
be too blunt -—
cope
with
A single standard will
or too ineffective —
a
variety
of
an instrument to
different
kinds
of
discrimination.
On
American
the
other
jurisprudence
hand,
in all
to
adopt
the
present
its ramifications would
not be a satisfactory solution either.
The American
Supreme Court has not yet reached a clear understanding
of
how
"sex"
regarded.
as a basis
In one case,
of classification
should
some justices recognized
be
that
distinguishing between persons only on the basis of sex
is,
like race,
invidious or inherently suspect.^4
it
sometimes still considers a sex-based classification to
be
justifiable
reasonable.^
on
a
mere
More often,
showing
that
it
is
the Court occupies a middle
position, adopting what has been called a "mid-tier" or
"multi-tier" approach to sex discrimination.^
'Sex'
is the only ground of discrimination which is treated
in this somewhat confused fashion.
We see no need
American
14
to import
muddleheadedness.
into our law this
Canadian
Frontiero v. Richardson, 411
See the reasons of Justices
White and Marshall.
theory
is,‘ we
U.S. 677 (1973 ).
Brennan, Douglas,
.15
See, for example, Kahn v. Shevin, 416 U.S. 351
(1974), and Stanton v. Stanton, 421 U.S. 7 (1975).
16
See, for example, Reed v. Reed, 404 U.S. 71 (1971)
and Craig v. Boren, 429 U.S. 190 (1976).
12
submit,
our
ahead of the Americans on this point and it is
approach
which
should
be
incorporated
in
our
Charter.
Our Prime Minister has put the position very
clearly.
Some
types
of
discrimination
are
more
invidious than others, and these are the ones based on
race and sex.
He has stated;,
’
"Perhaps this generation has recognized as
past generations have not that discrimination
based upon sexual or racial reasons lasts for
! " a lifetime.
There are, after all, only two
permanent conditions attributable to human
beings. One is sex. The other is race. All
other distinctions from which discrimination
may grow are temporary in nature or are
subject to change.
Education, religion,
language, .age, health,
economic statures,
experience — - all are or can be transient.
Discrimination based upon sex
or racial
— * origin is thus doubly unfair.
The person
against whom the discrimination is practised
had no choice of origin and has no option of
change.
There
is,
then,
no
reason
to
accord
those
suffering
from sex discrimination a lower order of redress
that given the victims of
race discrimination,
than
as
is
the case in the United States.
Accordingly, we propose that subsection 15(1)
be
replaced
by
a
new
subsection
15(1),
reading
as
follows;
17
Pierre
Elliot
Trudeau,
Conversations
with
Canadians, (Toronto, U. of T. Press, 1972), pp.
23-24.
(Taken from a speech to the Toronto and
District Liberal Association, 3 March 1971).
13
15
(1)
Every person shall have equal rights
including
the
right
to equality
in law
before
the
law and to the equal protection and benefit
of the law.
(2)
Such equal rights may be abridged or denied
only
on
the
distinction.
ethnic
basis
of
a
reasonable
Sex, race, colour, national or
origin,
and
religion
will
never
constitute a reasonable distinction except as
provided in subsection (3).
We th'ink that
of advantages.
equal
rights,
perform
Charter.
the
this formulation has a number
It begins with an explicit statement of
one that will
educational
linger
in the memory and
function
desirable
in
a
It preserves the guarantee of equality in the
administration of the law.
The last phrase is balanced
so that a Court will not think that only "protective*1
laws
are
to be
extended
equally.
The
guarantee
of
"equality before the law" and "the equal protection and
benefit of the law" are stated to be included in "equal
rights in law".
The introductory phrase is thereby, we
hope, made flexible enough to allow considered judicial
adjustment of rights to meet changing conditions.
Subsection
bases
—
i.e.
the
(2)
reflects
enumerated
the
ones
—
idea
that
will
acceptable as reasons for making distinctions
some
never
be
in law.
These grounds are thus put, by reason of the Charter,
in a position somewhat like the suspect classification
of the American jurisprudence,
the
protection
for.
the
although we think that
individual
is
somewhat
14
stronger.
Justice
The
Laskin
Charter
has
would,
applied
to
to
use
the
words
Bill
of
Chief
Rights,
"itself enumerate prohibited classifications which the
judiciary
is
bound
to
respect".Our
list
of
prohibited or suspect classifications does include more
than
1race*
or
1sex*:
we
believe
additions reflect Canadians*
that
these
few
views about what sort of
discrimination is most grave.
The
legislator
distinctions
on bases other
subsection 15(2),
be
reasonable
allows
would
have
than
freedom
those
to
make
enumerated
in
but those bases would still have to
ones.
the Courts
This
to
aspect
recognize
of
that
our
formulation
in
a particular
case, it would be unreasonable to make distinctions in
law
on
the
even though
basis,
say,
of age,
the Charter does
or
marital
not contain
status,
an explicit
prohibition of such distinctions.
We
have
from our
proposed
suggests
that
before
think
subjective
adverse
this
term
"discrimination"
We believe
must
be
that
adversely
its
the equality guarantee.
leaves
too
about
The
much
what
Supreme
Burnshine,*9 for example,
leeway
is and
Court
for
is
in
use
affected
invoke
judgments
affect.
the
section.
individuals
they can
that
removed
We
highly
not
R.
thought it beneficial
an
v.
for a
young offender to be
incarcerated a year and a half
longer
would be
than
an
adult
for
18
[1974] S.C.R. 1349, at p. 1386,.
19
[1975] S.C.R. 693.
the
same
offence
15
because
his
increased.
chances
of
rehabilitation
were
thereby
Many would disagree with that view.
Lastly, we think that the title of section 15
should
reflect
the positive,
introductory words:
symbolic
we propose
content of
"Equal
Rights"
its
as
a
substitute for "Non-discrimination Rights".
Section 15(2)
Subsection 15(2)
of the proposed Charter
is
designed to permit legitimate programs for the benefit
of
disadvantaged
groups,
thus
preventing
them
from
being ruled invalid on account of subsection (1).
We
principle.
past
think
this
A constitution by
injustice:
federal
that
legislative
and provincial
is
an important
itself cannot eradicate
activity
governments
by
both
the
is necessary.
We
think that it is extremely important to recognize the
continuing role of "ordinary" human rights legislation
and
similar statutes
by building
into the Charter of
Rights an area within which they will operate.
We are of the view, however, that subsection
15(2)
as
Firstly,
it
its
now
stands,
protective
has
sweep
some
is
deficiencies.
not
limited
programs
sanctioned by a legislature.
section,
private employers might try to justify their
own measures
for giving preference
By using
to
to one group.
this
We
16
think that only programs authorized through legislation
should be protected.
Secondly/
the
"disadvantaged".
It
section
makes
prohibited
grounds
(sex,
subsection
15(1).
We
broad.
Affirmative
refers
no
reference
race/
think
action
etc.)
this
and
only
set
the
to
the
out
phrasing
similar
to
in
is
too
programs
are
very strong measures/ with effects both on the groups
benefited
and
on
the
groups
not
benefited.
We
definitely think that these programs should be used to
redress
the effects of past discrimination,
but we do
not think that such programs should be indiscriminately
available.
They
present wording.
would
be
so
available
under
the
For example, a group that could show
"disadvantages".because of inability to attend private
school might successfully argue that a program designed
for its benefit does not violate subsection 15(1), even
though such a program denied opportunities
Indians or women.
plan designed
to blacks,
On the other hand, proponents of a
for the benefit of
Indian people would
have to prove to a Court that these people are actually
disadvantaged
in
order
to
claim
the
subsection 2 as it is now worded.
such
a
requirement:
program have
to be
would
.protection
of
Problems abound in
everyone
disadvantaged*?
benefited
by
a
To what extent?
By what standard?
The
danger
is
that
some groups with a real
need for positive programs would lose out in two ways.
Firstly,
programs
because
for
of
their
technical
benefit
requirements
would
be
of
proof,
declared
17
-
unconstitutional.
employment
or
-
Secondly,
other
they
could
opportunities
by
be
some
denied
program
designed for a group with a less well-founded but more
easily
proven
'disadvantage1
and
this
denial
of
opportunity could not be prevented by section 15.
We propose a change
draft
subsection,
numbered
in the subsection.
15(3)
to
Our
accomodate
our
previous numbering change, is:
15
(3)
Nothing in this Charter limits the authority
of Parliament or a legislature
to authorize
any program or activity designed to prevent,
eliminate
or reduce disadvantages
likely to
be suffered by or suffered by any group of
individuals
when
related
the
to
individuals,
or
those
disadvantages
race
to
or
the
sex
other
bases of distinction pursuant
of
are
those
unreasonable
to subsection
( 2 ).
Its wording is, to some extent/ based on the
language
Act.
It
of
section
15
of
the
Canadian Human Rights
We think that this level of detail is necessary.
is similar to that of other sections of the draft
Charter dealing with group rights:
see,
for example,
section 23, dealing with minority language educational
rights.
Our section restricts the availability of the
protection
results
to programs dealing with correction of the
of
race
discrimination
set
out
in
based
and
on
subsection
sex
the
15(2)
pursuant to that subsection.
discrimination,
other
or
or
unreasonable
bases
found
Court
by
a
18
-
Section 29
We
note
with
considerable
dismay
the
three-year moratorium on implementation of section 15.
The
rationale
for
delaying
implementation
for
three
years is to give the governments time to bring the laws
into accord with the Charter's
requirements.20
We do
not think this is a valid reason.
To begin with,
Report
on
of
Women,21
the
Royal
issued
inventory
of
Commission
ten years
required
the
ago contained
reforms
to
Status
the
of
an extensive
promote
equality
in the law for women.
The Canadian Advisory Council on
the
has
Status
of
Women
prepared
a
second
entitled Ten Years Later,22 which
shows
in
slow,
changing
government
has
the
law
long
has
been
been
aware
of what
report,
that progress
even
is
though
required.
Similar reports on necessary changes in law to remove
20
Op* cit., note 6.
21
Royal Commission on
Ottawa, 1970.
22
C.A.C.S.W., Ten Years Later, Ottawa, 1979.
the Status of Women, Report,
19
-
discrimination exist in the provinces.^^
On the basis
of these reports we believe an omnibus bill to achieve
conformity
with
the
Charter
could
be
tabled in no more than six months.
have been changed
long ago.
prepared
and
These laws should
The only way to promote
government action is to remove the moratorium.
Moreover, it is the governments own judgment
that will decide which
laws will be amended
about compliance with section 15.
believe
that
a
particular
law
to bring
The government may
does
not
offend
the
section.
Others may well have a different view.
For
example,
the
in
the
of
the
Bedard
government
and Laveil
Indian Act
did
case
not
Moreover
changed,
though
declared
23
even
on October
that
deny
Indian women.
stoutly
section
equality
this
the
6 that
maintained
12(1}(b)
before
the
law still has
Honourable
law
to
not been
Mr.
"As. a Government,
Chrétien
we now
See for example:
What has happened?, Nova Scotia Advisory Council
on the Status of Women, September, 1980.
"Brief to the Government of Ontario Respecting
W i d o w s Rights to Family Property", Ontario Status
of Women Council, August, 1980.
5th
Annual
Report, Ontario
Status
of Women
Council, April 1978 to March 1979.
"Plan of Action on the Status of Women", New
Brunswick Advisory Council on the Status of Women,
1980.
Annual Report, New Brunswick Advisory Council on
the Status of Women, 1978-1979, 1979-1980.
"Prise de position du Conseil du statut de la
femme' sur les discussions constitutionnelles",
Québec, 1980.
Le livre rouge de la condition féminine, RAIF,
1979.
"Brief to the Canadian Human Rights Commission",
Newfoundland Status of Women Council, 1980.
"Brief to the Committee on Constitutional Review",
Newfoundland Status of Women Council, 1980.
20
consider
ourselves
morally
bound
by
the
non-discrimination provisions of the Charter,.."
The moratorium means that it will be at least
three
years
from
patriation
before
a
person
can
challenge in Court the governments judgment that some
law is not in violation of section 15,
We already know
about numerous laws which we think violate section 15,
and
know
Section
of
15
the
hardship
Court
proceedings
years.
Even
witnesses
can be assembled
the moratorium
than
assuming
means
a three-year
unconscionable,
these
wait
and
will
that
that
for
violations
necessary
after
some
further
facts
and
a three-year delay,
will
justice.
extremely
devour
cause.
experience
This
incongruous
more
is surely
given
the
haste with which the government is proceeding with the
rest of the resolution.
Section
29(2)
should
be
completely
removed
from the Charter.
Section 24
This section seems designed to protect those
rights
and freedoms not explicitly dealt with
in
the
Charter.
Its closing phrase guarantees "any rights or
freedoms
that
pertain
Canada".
24
Op* cit., note 6
to
the
native
peoples
of
21
In the Bedard
and Lave 11 case,
it was
held
that differential treatment of Indian women who married
non-Indians
relating
to
was
justified
the
because
internal
it
governance
was
of
a
matter
Indians
on
Reserves, Reserves being among the rights vouchsafed to
the Indian people by the British North America Act.25
We
proposed
are
unsure
Charter
will
whether
justify
section
other
24
of
the
differentiations
between Indian women and men, on the basis of real (or
imagined) customs, rights, or ancient freedoms*
To clarify the position, we would like to see
added
at
the-
"...provided
end
that
of
such
section
rights
or
24
the
phrase:
freedoms
pertain
equally to native men and women".
Section 26
This
section
of
the
Charter 'preserves
the
power of Parliament and the legislatures to make rules
respecting
proceeding.
Charter,
the
admissibility
It also states
except
self-crimination,
section
would
of .evidence
any
that no provision o f ' the
13
affect
dealing
the
admissibility of evidence.
25
in
[1974] S.C.R. 1349, at pp. 1359-1362.
laws
with
of
22
We
are
concerned
about
the
impact
of
section on the guarantees in section 15, which,
very
least,
does
deal
with
administration of the law.
properly
be
different
admissibility of
Indian
and
a
equality,
this
at the
in
the
Does it mean that there can
provisions
concerning
testimony of a woman
non-Indian,
a
religious
and
the
a man,
person
an
and
an
agnostic?
Certainly members of this Committee will be
aware
of our
long-standing
interest
in ensuring
that
laws about admissibility of evidence in cases of sexual
assault are not based on sexual stereotypes, and do not
unfairly prejudice the victim.26
A bias against women in the laws of evidence
could prejudice the fair trial of the issue.
We ask that the section
be amended
so that
its introductory words are:
No
provision
of
this
Charter,
other
than
sections 13 and 15...
Section 3
This
rights
"without
limitation".
26
section
guarantees
certain
unreasonable
political
distinction
or
We are not convinced that this qualifying
See Council Recommendations
October 1979.
on
Sexual
Offences,
23
phrase need be so broad.
We are sensitive to a period
in our history when women were denied the franchise and
the right to stand
that members
same
of
fate.2®
religion or
for public office.^7
racial
minorities
Exclusions
from
we remember
have
the
suffered
vote
the
because
of
insufficient property qualifications were
familiar features of early English history.
We
after
”...
think
that
limitation”,
section
the
3
phrase
conformity with section 15...".
should
include,
"established
in
The prohibited bases
for distinction set out in section 15 would thereby be
incorporated as forbidden basés for denying
to vote and hold office.
youthfulness,
the right
There may be reasons,
or -serious
mental
franchise might be withheld.
incapacity,
like
why
the
We do not think, however,
that race, sex, national or ethnic origin, or religion
should
ever
constitute
a
reason
for
denying
to
a
rights
which
citizen the right to vote or hold office.
The Person
The
individual
Charter
persons
have
deals
with
vis-à-vis
government
action.
27
See Catherine L. Cleverdon, The Woman Suffrage
Movement in Canada, (Toronto, U. of T. Press,
1959).
28
In Cunningham and A.G. for B.C. v. Tomey Homma and
A.G»' for. Canada, (1903) A.C.
151,
the Privy
Council held that British Columbia could deny the
vote to men who were Chinese, Japanese or Indian.
The
Diefenbaker
government ' finally
permitted
Indian
people
to
vote
without
becoming
’enfranchised.1, that is, giving up their rights
under the Indian Act.
24
We
think
that
the
language
of
the
Charter
should
emphasize this point#
The present draft
uses
"Everyone has..#"
the customary way of beginning a section.
language version is "Chacun a...”
some
special
formula
limitation
used:
for
on
the
example,
as
The French
Only when there is
right
sections
is a different
3 and
6 begin
"Every citizen has..."
The present Canadian Bill of Rights, on the
other hand, refers to "the right of the individual to
life,
liberty,
security of the person...",
"the right
of the individual to equality before the law...",
and
restrictions on the authority of the state to "compel _a
person" or "deprive a person*1, and so on.
We would like to see each section which now
begins with
"Everyone"
"Every person";
be changed,
in French,
so
that
it begins
the phrase could be "Toute
.personne".
Section One
We have left until last comment about one of
our most grave reservations about this proposed Charter
of Rights.
Section .one is,
In our view,
to be succinct,
deplorable.
if section one is allowed to continue in
25
its present form, there is no point in having the rest
of the Charter.
greater
Our liberties
jeopardy
while
and rights will be in
"guaranteed"
by
a
Charter
containing section one than ever they have been.
The section states that the guarantees of our
rights
and
freedoms
are
"subject
only
reasonable limits as are generally accepted
to
such
in a free
and democratic society with a parliamentary system of
government".
This
exception
is
a
contradiction
whole
idea behind a Charter of Rights.
which
is
"generally
accepted"
in
parliamentary system of government
limitation
which
Protection
of
majority
is
has
the
a
is,
acceptance
minorities
against
the
cornerstone
very
the
of
the
A limitation
society
with
a
essentially,
a
of
a
majority.
actions
of
of
our
the
civil
liberties, enunciated as such by John Stuart Mill:
The will of the people, moreover, practically
means the will of the most numerous or the
most active part of the people? the majority
or those who succeed in making themselves
accepted
as
the
majority?
the
people,
consequently, may desire to oppress a part of
their number? and precautions are as much
needed against this as against any other
abuse
of
power
...
and
in
political
speculations "the tyranny of the majority" is
now generally
included
among
the
evils
26
against which society requires
guard.29
To say
that we will
to be on its
limit our liberties in
ways that have majoritarian approval from time to time
is to say that our Charter is hollow.
There are further grave difficulties with the
suggested
the
approach.
Charter,
the
inconsistent
with
Under
Court
the
the
is
system established
to
Charter
say
when
and,
by
a
by
law
is
operation
of
section 25, the law is inoperative to the extent of the
inconsistency.
A
particular
Court may
limitation
under section one.
determine
thus
on
come
our
to
assess
liberty
is
whether
a
permissible
The standards by which a Court can
this question will be difficult to develop.
Any piece of legislation limiting our liberty will have
been passed by a majority of members of Parliament or
the
legislature
invited
to
limitation
say
is
in question.
that
this
"generally
Yet,
does
the Court will be
not
accepted
mean
in
a
that
the
free
and
27
It
may
well
be
that
a
Court
daunted by this prospect that few,
would
be
if any, limitations
on our liberties would ever be ruled inoperable.
Courts
have
long
functioned
so
within
a
Our
tradition
of
'’Parliamentary supremacy”, a principle which holds that
the
legislature
legal
may
and
is
the
ultimate
acceptable.
invite
arbiter
of
what
is
The provisions of section one
the Courts
to continue
rule of Parliamentary supremacy,
to respond
to
the
and uphold virtually
every limitation, on freedom enacted by a legislature.
In that event, only limitations
imposed in regulations
or other non~parliamentary sources of law would ever be
seriously
scrutinized.
Section 25,
indeed
the whole
Charter, would be deprived of all meaning.
On
vigorous
the
other
in scrutinizing
the Charter,
by any
actions are
the
limitations
Courts
on
might
be
terms
of
the
even when those limitations were imposed
by legislative majority.
wounded
hand,
Parliament would doubtless be
intimations
unfree,
in this scrutiny that
undemocratic,
its
or unparliamentary.
Section one might thus precipitate needless, and sharp,
conflict between the Courts and the legislature.
risks of such conflict are twofold.
so
wary
of
it
that
they
will
The Courts may be
adopt
an
extremely
cautious approach to interpreting the Charter.
alternative,
they
may
The
strategically
"pick
In the
their
fights”, risking outcry only when the values at stake
are ones they prize most highly.
Then,
in truth,
the
Court would be radically altering the intention behind
the Charter to safeguard all the enumerated rights and
freedoms.
'
28
We cannot ignore the purpose behind section
one.
In part,
leeway
it must be to provide the Courts with
in interpreting
the Charter,
so
that problems
posed by absurdities and absolutes can be resolved.
We
believe that the rules of interpretation developed over
the
centuries
avoid
will
absurdities,
continue
to
injustice,
assist
and
the
court
anomolies,
to
even
without a clause like section one.
In part, the section is probably designed to
allow
limitations
interest,
ringing
on
our
liberties,
during a national
note
of
caution,
crisis.
however,
in
the
public
We must sound a
at
using
such
a
sweeping section to achieve this purpose.
One
commentator
said
with
reference
predecessor of the present section one,
to
the
section 25 of
Bill C-60:
"Provisions similar to section 25 of Bill
C-60 serve as the constitutional basis for
some of the more authoritarian and anti-human
rights conduct which the world has witnessed
since the Second World War.
Provisions
similar to section 25 have provided the
constitutional authority for Idi Amin to
pursue the activities he has, for Indira
Ghandi to impose authoritarian government in
1976, and for the Government of Bangladesh to
impose martial
law on August
25,
1975.
Examples can be found in other Commonwealth
constitutions and in the experiences of other
Commonwealth countries such as Sri Lanka,
Cyprus, Nigeria and Malaysia. Also note that
the Soviet Constitution has a similarly
worded provision {along with an "entrenched"
29
Bill of Rights).
Surely the experiences of
these countries renders section 25 of Bill
C-60 suspect if one is to take the objectives
of Bill C-60 at face value*
It may be noted that section 25 contained explicit,
if
wide, . phrases
be
describing
when
liberties
could
c u r t a i l e d . S e c t i o n one is far more general.
If it is regarded as necessary to provide for
curtailment of liberty in times of national crisis, we
ask that the grounds for such curtailment be precisely
and
narrowly
articulated.
The
philosophy
behind
permitting such curtailment should also be expressed:
we
limit
some
liberties
liberties
might,
in
the
so
that
end,
all
our
flourish.
fundamental
Both
these
stipulations are necessary so that there is clear and
forceful guidance to the Courts.
For a model of a desirable provision, we draw
upon the International Covenant of Civil and Political
Rights,
to which
Canada
is a signatory.
We
propose
that the provision be part of section 29, dealing with
30
W. Conklin, Op. cit., note 13, p. 292.
31
Bill C-60, Op. cit., note 8, p. 12.
The text of
section 25 is as follows:
"Nothing in this
Charter shall be held to prevent such limitations
on the exercise or enjoyment of any
of
the
individual rights and freedoms declared by this
Charter
as
are
justifiable
in a
free and
democratic society in the interests of public
safety or health, the interests of the peace and
security of the public, or the interests of the
Rights
and
Freedoms
of
others
whether
such
limitations are imposed by law or by virtue of the
construction or application of any law."
30
the
application of
the Charter,
We
do not think
it
desirable to have the limitations on our liberties take
pride of place in section one.
In
lieu
of
the
present
section
one,
we
therefore propose a simple statement of purpose, which
would appear as section one:
The Canadian Charter of Rights
guarantees
to
every
person
and Freedoms
the
rights
and
freedoms set out in it.
Then we propose
the addition to section 29,
in place of the present subsection (2), the following:
29
(2)
In time of public emergency which
threatens
the life of the nation and the existence of
which
may
is
officially
authorize
certain
rights
strictly
rights and
and
temporary
and
required
situation
will
the
in
proclaimed,
restriction
freedoms
by
a
freedoms
be preserved;
the
Parliament
to
the
exigencies
manner
that
of
extent
of
the
the
other
set out in this Charter
provided
that
such
restrictions shall not involve discrimination
solely on the ground
of
race,
colour,
sex,
religion or ethnic origin.
(3)
No derogation
from sections 2(a), 3, 7, 12,
14,
16-22
and
subsection (2).
23
is
permissible
under
31
Our proposed subsection
(3) stipulates those liberties
which
curtailed,
should
emergency.
never
The
be
list
closely
International Convention.
even
in
parallels
times
that
in
of
the
The protected liberties are:
freedom of conscience and religion, the right to vote
and hold office (assuming that elections have not been
postponed
pursuant
to section 4),
the right
to life,
liberty and security of the person and the right not to
be deprived thereof except in accord with principles of
fundamental justice, protection from cruel and unusual
punishment,
the right
to a translator in proceedings,
the right to use of the official languages,
and right
to
language.
education * in
the
chosen
official
Moreover, the proposed subsection (2) reflects our view
that denial of equality on the basis of race, colour,
sex, religion or ethnic origin can never be justified,
even in emergencies.
Summary of Recommendations
Accordingly, we most respectfully submit that
the following changes be made to the present Charter,
and that this Committee approve the entrenchment of the
Charter in its revised form.
Our proposed changes are:
Section 1
The Canadian Charter of Rights
guarantees to every person
freedoms set out in it.
(See pages 24-31)
the
and Freedoms
rights
and
-
32
-
Section 3
Every
citizen
unreasonable
established
of
Canada
distinction
in
has,
or
conformity
without
limitation,
with
section
15,
the right to vote in an election of members
of the House of Commons or of a legislative
assembly and
to be qualified
for membership
therein*
(See pages 22-23)
Section 15
(1)
Equal Rights
Every person shall have equal rights
including
the
right
to
equality
in law
before
the
law and to the equal protection and benefit
of the law*
(2)
Such equal rights may be abridged or denied
only
on
the
distinction.
ethnic
basis
of
a
reasonable
Sex, race, colour, national or
origin,
and
religion
will
never
constitute a reasonable distinction except as
provided in subsection (3).
(3)
Nothing in this Charter limits the authority
of Parliament or a legislature
to authorize
any program or activity designed to prevent,
eliminate
or reduce disadvantages
be suffered by or suffered
individuals
related
to
individuals,
when
the
or
those
race
to
bases of distinction
( 2) .
(See pages 4-15)
the
likely to
by any group of
disadvantages
or
sex
other
pursuant
of
are
those
unreasonable
to subsection
33
Section 24
The
guarantee
in
this
Charter
of
certain
rights and freedoms shall not be construed as
denying the existence of any other rights or
freedoms that exist in Canada,
including any
rights or freedoms that pertain to the native
peoples of Canada? provided that such rights
or freedoms pertain equally to, native men and
women.
(See pages 20-21)
Section 26
No
provision
sections
13
respecting
any
of
the
this
and
Charter,
15,
affects
admissibility
proceedings
or
the
other
than
the
laws
of evidence
in
authority
of
Parliament or a legislature to make laws in
relation thereto.
(See pages 21-22)
Section 29(2)
Section
29(2)
should
be
completely
removed
from the Charter.
(See pages 18-20)
Section 29(2).
New Rewording of Section 1
In time of public emergency which threatens
the life of the nation and the existence of
which
may
is
officially
authorize
certain
rights
strictly
the
temporary
and
required
proclaimed,
freedoms
by
the
Parliament
restriction
to
the
exigencies
of
extent
of
the
situation and in such a manner that the other
rights and freedoms set out
will
be
preserved?
in this Charter
provided
that
such
-
34
restrictions shall not involve discrimination
solely on
the ground
of
sex,
race,
colour,
religion or ethnic origin,
(3)
Mo derogation
from sections 2(a), 3, 7, 12,
14,
16-22
and
subsection (2)*
23
is
permissible
under
(See pages 24-31)
General clause
Each section which now begins with "Everyone"
should
be changed
person".
(See pages 23-24)
so that
it begins
"Every
APPENDIX:
LIST
OF CURRENT
CACSW
PUBLICATIONS
SUMMARY
BIRTH PLANNING
by Mary Pearson,June 1979,50 p.
CACSW Recommendations, June 1979.8p.
byLouiseDulude.
B a c k g ro u n d N o te s o n B irth P la n n in g a n d C o n c e p tio n C o n tro l
A S ta te m e n t o n B irth P la n n in g ,
A b o r tio n in C a n a d a : B a c k g ro u n d N o te s o n th e P ro p o s e d A m e n d m e n ts to th e C rim in a l C o d e
November 1975,26p.
Summary, 7p.
THE FAMILY
0
29 p.
CACSW Principlesand Recommendations, January 1977.4p.
byS.JuneMenzies.April1976.
*
S e c u rity H ro g ra m s fo r F a m ilie s w ith C h ild re n by-LouiseOuiude,January i960. 1
1p.
fie -P a re n t F a m ily
N e w D ire c tio n s fo r P u b lic P o lic y : A P o s itio n P a p e r o n th e O n e -P a re n t F a m ily
.
F e d e ra l In c o m e
FINANCIAL STATUS OF WOMEN
C A C S W A n n o ta te d R e c o m m e n d a tio n s o n W o m en a n d T a x a tio n ,
January 1978.17p,
MARITAL ISSUES
,February1979.23p.
O/'yorceLaw Reform, CACSW Recommendations,September 1976. 14p.
S tu d y P a p e r o n D iv o rc e by MarciaH
.Ricux,June 1976.45 p.
A D e fin itio n o f E q u ity in M a rria g e , CACSW Statemento
fPrinciple,May 1976.3p.
S ta te m e n t o n M a trim o n ia l P ro p e rty L a w s in C a n a d a
VIOLENCE AGAINST WOMEN
B a c k g ro u n d N o te s o n th e P ro p o s e d A m e n d m e n ts to th e C rim in a l C ode, th e C an ad a E v id e n c e A c t a n d th e
P a ro le A c t ( B ill C -5 1 )
B a c k g ro u n d N o te s o n th e P ro p o s e d A m e n d m e n ts to th e C rim in a l C o d e in R e s p e c t o f In d e c e n t A s s a u lt ( B ill C 52)
by Marcia Riouxand Joanna McFadyen, May 1978.32p.
by MarciaH.Riouxand Joanna L.McFadyen and Recommendations oftheCACSW, June 1978.28p.
SOCIAL POLICY AND ISSUES
Women
Women
a n d A g in g : A R e p o rt o n th e R e s t o f o u r L ive s
In d ja n W o m en a n d th e L a w in C a n a d a : C itiz e n s M in u s
a n d A g in g (P a c t S h e e t N o. 2),
October 1979.
by LouiseDulude,April1978. 125p.
by KathleenJamieson,April1978.108 p.
Summary, 5p.
Summary, 6p..
WOMEN AND WORK
byMaryPearson,April1979.69p.
bySheilaMcLeod Arnopoulos,January 1979.
83 p.
Five M illio n W o m en : A S tu d y o f th e C a n a d ia n H o u s e w ife by Monique P
roulx,June 1978.98p.
O c c u p a tio n a l H e a lth H a za rd s t
oWomen; A S y n o p tic V iew by Ann George, October1976.132p.
W om en a n d W o rk { fa c t s h e e t N o , 1), June 19
79.
The S e c o n d T im e A ro u n d : A S tu d y o f W o m en R e tu rn in g to th e W o rk F orce
P ro b le m s o f im m ig ra n t W o m e n in th e C a n a d ia n L a b o u r F o rce
Summary, 6p.
Summary, 7p.
THE FEDERAL GOVERNMENT
W o m en in the P u b lic S e rv ic e : B a rrie rs to E q u a l O p p o rtu n ity .
January1979.85p.
GENERAL
The S ta tu s o f W o m en a n d th e CSC — A b rie f b y th e C A C S W to th e C R tC , November 1
978.30 p.
flecommendaf/onso f th e C A C S W b y s u b je c t, October 1978.59p.
■S h a rin g th e P ow er, a k it p re p a re d b y C A C S W m e m b e rs , April1978.
C a n a d ia n P e rs p e c tiv e o n S ex S te re o ty p in g in A d v e rtis in g byAl
iceE.CourtneyandThomasW.Whipple,June
1978. 117p,
/nfernaf/ona/D e c a d e fo r W o m e n : 1976-1985: W h a t ft M e a n s to C a n a d ia n Women byMaryPearson,November
1977.40p.
A n n u a i Reporto f the C a n a d ia n A d v is o ry C o u n c il o n the S tatu s o f W om en. *1
3
2
AVAILABLE FROM THE CANADIAN GOVERNMENT PUBLISHING CENTRE
1. 70Years L a te r — A n a s s e s s m e n t o f th e F e d e ra l G o v e rn m e n t's im p le m e n ta tio n o f th e re c o m m e n d a tio n s m a d e b y the R o y a i
C o m m is s io n o n the S ta tu s o f W o m en , October1979.72p
.— Price$2.95.
2. W ife B a tte rin g in C a n a d a : th e V ic io u s C irc le by LindaMacLeod, January1980.72p.— Prioe$2.95.
3. W o m e n a n d U n io n s byJulie.White,April1980.131 p.— Price$2.95.
Summary 2.6p. □; Summary 3,6p. □.
Orders must be prepaid by postal money orderorcheque made totheorderoftheReceiverGeneral and addressedtothe
CanadianGovernmentPublishingCentre,Hull,Quebec K1A QS9.Add 20% topricesforbookstobeshippedoutsideCanada,
Alsoavailablethroughauthorizedbookstoreagentsorlocalbookstores.
S U M M A R IE S O F T H E A B O V E P U B L IC A T IO N S F R E E B Y W R IT IN G T O T H E C A C S W .
APPENDIX
ANNEXE
List of Papers Prepared for the CACSW on the Constitu­
tion
Liste de documents préparés pour the CCCSF sur la Consti­
tution
Eberts, Mary.' Women and Constitutional*Renewal.
Baines, Beverley. Women,. Human Rights and the
Constitution.
Native Women*s Association of Canada.
and the Constitution.
Bénard, Nicole.
Native Women
Le Droit de la famille.
Bowman, Nicole. Proposed Transfer of Divorce Juris­
diction: an Assessment.
Huddart, Carole'. Property Division on Marriage Break­
down in the Common Law Provinces.
Fédération des femmes du Québec. Les effets du
chevauchement des juridictions sur la vie quoti­
dienne dés femmes.
Doerr, Audrey. Overlapping Jurisdictions and Women*s
Activities.
National Action Committee on the Status of Women.
Overlapping Jurisdictions: A Pitfall in Supplying
Services to Women.
Dulude, Louise.
Women, Poverty and the Constitution.
t
Carrier, Micheline. Les droits des femmes et ’les
.intérêts d e .la nation *.
:"'''
Aubert, Lucienne.
L*emploi et la maternité.
Fédération des femmes du Québec.
Duckworth, Muriel.
La femme et 1 1emploi.
Women1s Services.
SUMMARY OF RECOMMENDATIONS
Of
the Canadian Advisory Council on the Status of Women
Concerning
the Proposed Charter of Rights and Freedoms
November 18, 1980
Canadian Advisory Council
on the Status of Women
Conseil consultatif canadien
de la situation de ia femme
Box 1541 Station B. Ottawa K I P 5R5
C P 1541 Suce B. Ottawa K iP 5R5
___ ________________ ______________________________ __________ - ________ __________________________________________________________________________ ;
Summary of Recommendations
of the Canadian Advisory Council on the Status of Women
Concerning thé Proposed Charter of Rights and Freedoms’
Our proposed changes ares
Section 1
The Canadian Charter of Rights and Freedoms
guarantees
to
every
person
the
rights
and
freedoms set out in it.
Section 3
Every
citizen
unreasonable
established
of
Canada
distinction
in
has,
or
conformity
without
limitation,
with
section
15,
the right to vote in an election of members
of the House of Commons or of a legislative
assembly and to be qualified
for membership
therein.
Section 15
.;5>(1)
Equal Rights
Every person shall have equal rights in law
including
the
right
to equality
before
the
law and to the equal protection and benefit
of the law.
(2)
Such equal rights may be abridged or denied
only
on
distinction.
\
ethnic
the
basis
of
a
reasonable
Sex, race, colour, national or
origin,
and
religion
will
never
constitute a reasonable distinction except as
provided in subsection (3).
(3)
Nothing in this Charter limits the authority
of Parliament or a legislature to authorize
any program or activity designed to prevent,
eliminate or reduce disadvantages
be suffered by or suffered
individuals
related
when
to
those
the
individuals,
or
by any group of
disadvantages
race
to
or
the
sex
other
bases of distinction pursuant
(
likely to
of
are
those
unreasonable
to subsection
2) .
Section 24
The
guarantee
in
this
Charter
of
certain
rights and freedoms shall not be construed as
denying the existence of any other rights or
freedoms that exist in Canada, including any
rights or freedoms that pertain to the native
peoples of Canada? provided that such rights
or freedoms pertain equally to native men and
women.
Section 26
No
provision
sections
13
respecting
any
of
this
and
Charter,
15,
affects
other
than
the
laws
the admissibility of evidence
proceedings
or
the
authority
Parliament or a legislature to make laws
in
of
in
relation thereto.
Section 29(2)
Section
29(2)
should
be
completely
removed
from the Charter.
Section 29(2).
New Rewording of Section 1
In time of public emergency which threatens
the life of the nation and the existence of
which
may
is
officially
authorize
certain
strictly
rights
the
temporary
and
required
proclaimed,
by
freedoms
the
Parliament
restriction
to
the
exigencies
of
extent
of
the
situation and in such a manner that the other
rights and freedoms set out in this Charter
will be
preserved?
provided
that
such
restrictions shall not involve discrimination
solely on the ground of sex,
religion or ethnic origin.
(3)
No derogation
14,
16-22
race,
colour »
from sections 3(a), 3, 7, 12,
and
23
is
permissible
under
subsection (2).
General clause
Each section which now begins with "Everyone"
should be changed so that it begins "Every
person".