CONTENTS
Tuesday 6 August 1991
Anne F. Bayefsky
Robert E. Robertson
Adjournment
SELECT COMMITTEE ON ONTARIO IN CONFEDERATION
Chair: Silipo, Tony (Dovercourt NDP)
Vice-Chair: Bisson, Gilles (Cochrane South NDP)
Curling, Alvin (Scarborough North L)
Eves, Ernie L. (Parry Sound PC)
Gigantes, Evelyn (Ottawa Centre NDP)
Harnick, Charles (Willowdale PC)
Harrington, Margaret H. (Niagara Falls NDP)
Malkowski, Gary (York East NDP)
Mathyssen, Irene (Middlesex NDP)
Offer, Steven (Mississauga North L)
O'Neill, Yvonne (Ottawa-Rideau L)
Winninger, David (London South NDP)
Substitutions:
Drainville, Dennis (Victoria-Haliburton NDP) for Mr Silipo
White, Drummond (Durham Centre NDP) for Ms Gigantes
Clerk: Brown, Harold
Staff:
Kaye, Philip, Research Officer, Legislative Research Service
Murray, Paul, Research Officer, Legislative Research Service
Wakefield, Ted, Research Officer, Legislative Research Service
The committee met at 1409 in room 151.
The Vice-Chair: The committee will come to order. We would like to welcome those who are tuning in to the parliamentary channel, watching these proceedings. We are now in the second week of the second phase of our hearings, in which we are asking people to come before our committee to give us specific information in regard to some of the questions that we posed to people after the first part of our hearings. I would like, if opportune at this point, for the members of the committee to introduce themselves to both those people sitting here and those people back at home watching. We can start with, let's say, Mr Malkowski, and work our way down.
Mr Malkowski: Hi. I am Gary Malkowski from York East.
Mr Drainville: Dennis Drainville from Victoria-Haliburton.
Mr White: Drummond White from Durham Centre.
Mrs Mathyssen: Irene Mathyssen, Middlesex.
Mr Winninger: David Winninger, London South.
The Vice-Chair: And from the opposition?
Mrs Y. O'Neill: Yvonne O'Neill, Ottawa-Rideau.
Mr Offer: Steven Offer, Mississauga North.
Mr Harnick: Charles Harnick, Willowdale.
The Vice-Chair: Also here at the table we have three members from our research department: Ted Wakefield, who is sitting in the corner, Paul Murray and Philip Kaye. Next, on my right, is the clerk of the committee, Mr Harold Brown -- I almost got you mixed up again, Harold -- and Mrs Hansard, we call her -- it is a little bit of an inside joke -- Beth Grahame, who does the recordings of our proceedings.
ANNE F. BAYEFSKY
The Vice-Chair: Today we are going to be hearing from our first presenter, Ms Anne Bayefsky, who is a law professor at the University of Ottawa. She is here today to talk to us about the Charter of Rights and as well some questions around social and economic rights. Ms Bayefsky, if you can come forward, welcome to the committee, and any time you are ready.
Ms Bayefsky: Thank you, first of all, for inviting me to appear before this committee. In accordance with that invitation I would like to address three distinct questions that were set out in the material which you sent me or which the committee had prepared. The first is the override clause or the "notwithstanding" clause in the charter. The second will be the subject of social and economic rights in the charter. Third, I will turn to the constitutional amendment process itself.
When section 33, the override or the "notwithstanding" clause, was added to the Canadian Charter of Rights and Freedoms in the November 1981 accord, federal and provincial governments insisted that the section would rarely, if ever, be used. A similar provision in the Canadian Bill of Rights had been used only once. It was obvious, the public was told, that its use would always be met by significant unfavourable political consequences.
The last nine years have proved otherwise. The section has been used in a pre-emptive fashion, that is, before a possibly unfavourable court decision, in Saskatchewan to avoid the application of the charter's freedom of association provision in the context of the right to strike. It has been used on a number of occasions in Quebec, both by the PQ government to avoid all sections of the charter to which the override could apply and by the subsequent Liberal government with respect to legislation concerning pension plans, agricultural grants, the Education Act and the sign language law. None of these uses met significant impediments within the respective provinces.
The reality of the viability of section 33 has resulted in a begrudging admission on the part of political actors that the Charter of Rights and Freedoms is not really the entrenched bill of rights the people asked for in their frequent testimony before the Hays-Joyal committee in the fall of 1980. During those hearings, the overwhelming number of submissions made clear that the proposed section 1 limitation clause should be strengthened in order to eliminate the doctrine of so-called parliamentary sovereignty. While section 1 was indeed strengthened by amendments accepted by the Liberal government, the November 1981 accord reintroduced the doctrine of parliamentary sovereignty or supremacy in a much more direct fashion without public consultation. It is important to note that the federal government extended the possible reach of section 33 to federal legislation and it is not, as usually entitled by the press, a provincial override power.
There is therefore a fundamental inconsistency in the constitutional Charter of Rights. Section 52 calls it "the supreme law of the land," but how supreme is a law which can be dominated by legislatures or Parliament when they choose to opt out? Judicial decisions have called it the "fundamental law of the land," but how fundamental is a document whose rights can be avoided by legislation passed by ordinary majorities of legislatures or Parliament? We have not managed, to use Professor Maxwell Cohen's phrase, to have two supremacies in Canada. We have a doctrine of supremacy of Parliament and not a supremacy of charter regime.
In my view, therefore, the contradiction of a constitutional bill of rights which could be overridden by ordinary legislative majorities should end in favour of the enhanced protection of individuals and minorities.
At the same time, however, I do think that this enhancement of judicial authority must be accompanied by a reformed system of judicial selection. If, as the American constitutionalist Alexander Bickel said, judges labour under the obligation to gain general assent for their opinions or our free and democratic institutions are defined by the consent of the governed, there must be reform of the judicial selection process in Canada to permit greater popular participation and increased representativeness of successful candidates.
Profound scepticism, for example, will accompany any strengthening of constitutional protections for women if virtually the only people interpreting and applying those protections are men. Or, to give another example, the absence of a non-Christian on the Supreme Court of Canada gives rise to considerable concern that constitutional decisions especially affecting religious minorities, such as public funding for non-Christian schools or war criminal prosecutions are or will be handled inadequately.
This brings me to the second subject: social and economic rights. In general, international human rights law has tended to separate civil and political rights from social and economic rights. Their so-called interdependence is resisted, in particular by western states, because of a concern that an inability to satisfy the kinds of human needs required by social and economic rights in many parts of the world will serve as an excuse for the failure to protect civil and political rights. Furthermore, there is a widely shared view that the implementation of economic and social rights is much more closely tied to government economic policies and priorities and that judicial or quasi-judicial supervision of the enforcement of economic rights, in contrast to civil and political rights, is consequently inappropriate.
The international order is therefore characterized by distinct regimes for these two groups of rights, and overall, economic and social rights are associated with extremely weak supervision mechanisms. On the other hand, there are some rights of an economic nature which are found in civil and political rights treaties and considered in the same manner, such as the right to property, freedom of association including the right to trade unions, and the right to education. These three rights, with limitations, for example, are covered by the European Convention on Human Rights and are the subject of individual complaints which can be made before the European Court of Human Rights. Yet these rights are subject to some major limitations in the European convention itself. Moreover, they have been conservatively applied and interpreted by the European Commission and Court of Human Rights.
The right to property, for example, has been interpreted to require the individual to prove that he or she has been subject to a grossly unfair burden that outweighs the public interest or social aim of the legislation. The right to an education has been interpreted to mean the provision of basic skills and a primary education, but not an obligation, for example, with respect to higher education. A case that came up was on university correspondence courses to prisoners. A limitation of avoiding undue burden on public funds has been added in the course of interpretation. In other words, it might be said that where judicial or quasi-judicial institutions are required to apply economic or social rights, particularly where there are regional or national differences in approach to the same issue, they are reluctant to interfere with political decisions and priorities.
Social and economic rights, however, are usually subject to a very different enforcement model. The European social charter, and the additional protocol to the charter which expands the list of rights but is not yet in force, is in force by a mechanism that begins with a decision on the adequacy of national legislation by a committee of independent experts. That committee bases its conclusions on governmental reports, not on individual complaints of violations of the charter, but the decisions of the committee are then subject to review by a governmental committee, which in practice has most often disagreed with the initial findings, and concluded instead that no breach of the social charter was evident. Even where the governmental committee finds otherwise, its report is sent to the committee of ministers of the Council of Europe, which has the responsibility of making recommendations to the governments concerned. The committee of ministers has never made a recommendation that there has been a breach of the charter.
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There is an effort under way to strengthen the implementation mechanism of the European social charter. A working group has recently recommended that a collective or group right of action be instituted. This recommendation would allow trade unions, employer organizations and non-governmental organizations to complain of violations of the charter. That recommendation, however, has yet to be adopted. It should be noted that the adequacy of any complaint mechanism would still depend on how and by whom such complaints were handled, whether, for instance, they might ultimately be heard by the European Court of Human Rights or whether they would still proceed to a governmental committee of ministers for a recommendation. Overall, while among the 23 member states of the Council of Europe there is recognition that the implementation of social and economic rights of the charter should be strengthened, the political will to put their enforcement on the same plane as civil and political rights is not present.
The International Covenant on Economic, Social and Cultural Rights is also enforced by means of state reports received and reviewed by a committee composed of independent experts. The committee on economic, social and cultural rights has no capacity to accept complaints concerning violations of the covenant. It monitors compliance by requiring state parties to present reports before the committee. It is dependent upon a state's willingness to draft reports in consultation with its citizens in a constructive process of self-evaluation and self-criticism, and on members of the public and the press to follow and report the committee's comments.
In practice, the process leaves a great deal to be desired. Canada, for example, drafts its reports on compliance with the covenant without any consultation with members of the public. The drafting is carried out by a group of federal and provincial civil servants who meet in private. The goal of the reporting process is to cast Canada in the best possible light in an international forum and to avoid international embarrassment. For instance, in 1989 the Canadian ambassador presenting the report to the economic committee stated that several charter cases involving freedom of association have relied on the trade union rights in the covenant. On the contrary, the decision in the Supreme Court, which had been decided at that time on the issue of freedom of association, determined that the right to strike was not covered by the charter, in contrast to the express protection in the covenant.
When one well-informed committee member who knew of this contrary decision asked the Canadian delegation about the case, a member of the delegation responded that "a recent decision...[of] the Supreme Court relating to...trade union rights was clearly inspired by the covenant." The only case in the Supreme Court displaying any inspiration from the covenant did so in the context of a dissenting opinion. The Canadian example, therefore, indicates that the implementation mechanism associated with the covenant on economic, social and cultural rights is inadequate because of its reliance on the willingness of states to perceive the process of international scrutiny as constructive or beneficial rather than threatening.
With respect to the future, the economic, social and cultural rights committee will consider this fall a paper by one of its members recommending the addition of a system of individual petition or complaint on the economic covenant. However, this recommendation is unlikely to be adopted by the committee as a whole in the near future, nor at the present time by the United Nations General Assembly.
I will only mention the additional protocol to the American Convention on Human Rights in the area of economic, social and cultural rights. This protocol was concluded in November 1988 and is not yet in force. It contains an extremely limited implementation system. Since Canada is now party to the Organization of American States and is actively considering ratifying the American Convention on Human Rights, the question of ratification of its protocol will require Canadian attention in the not-too-distant future.
In short, therefore, international implementation mechanisms associated with economic, social and cultural rights are very weak. However, what remains to be considered is whether the fears associated with international supervision are applicable to the national scene or more specifically to the framework of a Canadian constitutional Charter of Rights. In my view, it is appropriate to differentiate the remedy provisions associated with most economic and social rights from those attached to civil and political rights. Whereas some economic and social rights do lend themselves more easily to the current Canadian charter regime, such as a right to an education and freedom of association encompassing a right to collective bargaining and a right to strike, most do not. After all, our Supreme Court has only recently stated that the comparatively straightforward issue of discrimination against those over 65 who want to work is beyond the realm of judicial competence, on the basis that the subject raised economic implications of hazardous proportions for judicial decision-makers.
The conclusion to be drawn is that any inclusion of most economic and social rights in a constitutional framework ought to be done in conjunction with the creative fashioning of a new enforcement regime. For example, one might envisage a kind of economic and social rights ombudsman, who would have a duty to report to Parliament. In other words, there might be a right of petition which is not judicial in character. But at the same time, any extragovernmental enforcement of such individual, or perhaps group, rights should not be understood as a substitute for governmental responsibility to articulate and administer economic and social policy which protects these fundamental human needs.
The third subject I am going to address myself to is the process of constitutional amendment. I wish to point out that, although I am currently a member of the Canadian Bar Association's Task Force on Constitutional Amendment Processes, which is chaired by the bar association president, Wayne Chapman, the views I express here are only my own. For your information, the task force has not yet determined its final recommendations and hopes to report early in the fall.
The Constitution Act, 1982 is silent on the manner in which proposals for constitutional change should be generated or the way in which such demands should be co-ordinated or ordered. On the other hand, the pressure for subsequent amendment was inevitable in view of the many items that were left off the agenda of constitutional reform in 1982. Together with the demands of Quebec, emanating from its 1982 rejection of the patriation package, the lacuna in the methodology for constitutional reform in Canada has contributed to an instability in our constitutional framework.
No one doubts that our nation's continued existence depends on resolving that instability, but the current process appears destined to repeat the procedural mistakes of the past. It is difficult for an observer to determine just what is the process of reform currently in operation, but it appears to involve the development of a proposal almost unilaterally by the federal government; meetings of a federal committee bilaterally with provincial members of the Legislative Assembly or committees who in some cases, if not most, will not have the authority to speak on behalf of their governments; solicitation of the views of members of the public on the federal proposals; and last, finalization of a package by February 1992 which, it is hoped, will not require further amendment as the provinces and the public will already have been consulted.
If this is the new Canadian constitutional amendment process, it raises some serious issues. The substance of the federal proposal, not addressed by the generalities of Spicer nor the specific focus of Beaudoin-Edwards, has apparently been set by only one government. The public will have only a few months in the fall in which to organize and formulate opinion on what is fairly certain to be a very broad range of subjects. If provincial governments are to avoid the impression of collusion, the antithesis of the Meech Lake lesson, then it is hard to avoid the conclusion that, from a provincial perspective, February 1992 ought to be only one more, albeit significant, event on the path of reform. The question formally raised by this committee of the appropriate process of constitutional amendment in Canada should not therefore be considered an idle question or one for the next round of amendments.
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With respect to the substance of an amending process, I would submit the following. Canadian constitutional amendment history, both before 1982 and after, suggests:
1. Public participation is an expected element of the process and must be designed in such a way as to constitute a genuine exercise in consultation. This will require that public hearings be convened at a time which will maximize their potential influence on the content and wording of agreements. More specifically, this means, for example, that public hearings should at least be held on the agenda and principles of proposed constitutional changes or on a tentative legal text, and prior to political agreement on any final legal text.
2. Particular care must be taken not to bargain away individual rights, in which the interests of minorities, women and aboriginal people may be at odds with the interests of political representatives, in the course of formulating revised federal-provincial divisions of power.
3. Adequate preparation should be allowed for first ministers' conferences. This includes adequate time for the preparation of negotiations, including federal-provincial conferences of officials. The fuller the implications of choices are understood at the political negotiation stage, the better. The complexities and interrelationships of the demands on the Constitution require co-operation at the earliest possible moment, not isolationist exercises in either drafting or apparent decision-taking.
Finally, I would make two comments on the amending formula. I believe it is important to dispel two fallacies currently circulating with respect to the merits or demerits of the existing amending formula. The first fallacy is that the three-year period allowed for passage of most constitutional changes is too long. On the contrary, the post-1982 amendment history suggests the three-year ratification period provides important time for public mobilization and involvement in the context of significant dissatisfaction with political agreements. At the same time, the three-year period did not inhibit amendment where there was widespread public support, or indifference, as was the case in the 1983 aboriginal amendment and the 1987 Newfoundland amendment.
Second, the fallacy has been voiced that regional or provincial vetoes somehow increase flexibility from the current seven provinces having 50% of the population formula which governs most amendments. On the contrary, while it is recognized that such vetoes enhance protection for those subjects or interests falling within its scope, such protection is purchased precisely at the expense of a decrease in flexibility and the likelihood of future amendment.
The Vice-Chair: Any questions?
Mr Harnick: Yes, it is more a clarification. You were talking about the charter and the effect of the "notwithstanding" clause and the idea that the supremacy of Parliament is stronger than the supremacy of the charter. I lost you when you began to talk about the judicial selection process. I found that to be somewhat of a non sequitur in your thoughts. I do not know where you were going with that. Can you explain that for me?
Ms Bayefsky: If one is to institute a genuine supremacy of charter regime and really put an end to the doctrine of parliamentary sovereignty by taking section 33 out of the Constitution, then the judiciary will concomitantly have an increase in its power. I think one can only advocate an increase in judicial power if at the same time one chooses very carefully the personalities that are making those decisions. Although it would not be dealt with, of course, by the Constitution, I do not think one has to grant that increase in power at the same time that one thinks hard about changing the process of judicial selection. Does that help?
Mr Harnick: I understand where you are going. I do not know whether I agree with you because, in many respects, the loss of supremacy of Parliament takes us much more in an American direction in terms of process, which I suppose people will say has to be the case if you are going to protect your Charter of Rights. Do you see any other alternatives?
Ms Bayefsky: I do not see any middle ground between the supremacy of Parliament and the supremacy of the charter. I think that if anything attempted to accomplish that, it is perhaps the present charter, and it did not do a very good job. I mean, the job is impossible. What happened was that the very many interest groups that spoke before the Hays-Joyal committee in the fall of 1980 said they wanted to end the regime of parliamentary supremacy. They understood it would be an increase in the judicial authority but that authority was worth while in view of the protection it offered to minorities and those who were inadequately protected by the democratic process. Of course, the provinces were historically very much against a charter regime because for obvious reasons it took away from political power. So they insisted that the November 1980 accord be such that section 33 was introduced.
This is something the federal government had been resisting, so when it was reintroduced there were subsequent public hearings on the subject and it was quickly put through the federal House of Commons and the Senate, within a couple of weeks. Those months and months of testimony before the Hays-Joyal committee were bypassed through a closed-door session. I myself view that the introduction of section 33 was inconsistent with public opinion, so I do not see a middle ground. We took the trouble to strengthen the limitation clause, albeit it has had its drawbacks in application, and that was simply inconsistent with a reintroduction of something that means that legislatures do not even have to prove that the limitation is demonstrably justified. Whether it is or not they can simply opt out.
Mr Harnick: Is there any way, in your opinion, to develop a "notwithstanding" clause with a more prescribed usage so that the ability to use it is confined? What I refer to is, for instance, Quebec, where the idea of a distinct society may well be a predominant thought, the idea of protection of a unique legal system such as there is in the province of Quebec may necessitate some kind of a "notwithstanding" clause. I wonder if you can enlighten us about whether there is any way the usage of the clause can be limited by prescription of some sort without denigrating the individual charter rights.
Ms Bayefsky: You can build in supermajorities, the use of the "notwithstanding" clause requiring some greater than 50% as is true for ordinary legislation. You can make the sunset provision of five years shorter, requiring greater political overview or at least public input as to whether or not its use is acceptable or not acceptable. But I think the bottom line is that a charter is about protecting minority interests and the majority of the people are not the best judges always of what is in the minority interest. If one accepts the principle that democracy has to be tempered with protection for minorities and individuals, then to keep a "notwithstanding" clause kind of up your sleeve just seems to me fundamentally inconsistent with the principle of that sort of protection. I think there is a hard choice to be made, and we have been through this as a country for 20 or 30 years now, virtually since the Canadian Bill of Rights.
I think the arguments are fairly well set out on both sides and we now end up with the constitutional Charter of Rights, which is not truly entrenched since "entrenched" meant it could not be bypassed with ordinary legislative majorities. So we have a very strange constitutional Charter of Rights. We have not made the choice and later we have to come to grips with it.
Mrs Y. O'Neill: Thank you so much for coming from the University of Ottawa to present. I presume that was the background we were given about you and that is all I know, and I am very happy to know that you are making a contribution at the national level as well as with the bar. I feel you have made a very significant contribution to our work. You have tackled three of the very difficult questions that we placed.
I wanted to just get a clarification about the documentation you used regarding the social rights because we have before us today a charter on fundamental social rights drafted and finalized by the social affairs council, reported by the presidency to the Strasbourg summit, and this is dated November 1989. You mentioned the social and economic rights international covenant. Are those complementary documents?
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Ms Bayefsky: No, they are different; they emanate from a different source entirely.
Mrs Y. O'Neill: You used the latter, right? You were speaking to it more.
Ms Bayefsky: Yes, and I also talked about the European social charter. Then there is a European Community charter from November 1989, which I assume you are speaking of, having to do with European Community law and the countries that are party to the European Community. In terms of the international documents that deal with economic, social and cultural rights, I simply address the European social charter, which has been around for a long time and which is addressed to the member states of the Council of Europe, although not all of them ratified it.
Second, the International Covenant on Economic, Social and Cultural Rights -- I think there are 18 members of the European social charter; I can look that up -- but the International Covenant on Economic, Social and Cultural Rights has around 100 ratifications. That is a document that emanated not from the Council of Europe but from the United Nations. It also has many more parties. The third document I referred to was the protocol to the American Convention on Human Rights dealing with economic, social and cultural rights, which emanates from the Organization of American States. That is not in force yet, but potentially it would affect Canada more than the European situation, since we may or may not decide to become parties to it.
Mrs Y. O'Neill: And in all of those instances, and you certainly have done your homework, undue hardship has to be proven to really get anything to arise from those pages and from those covenants and agreements that is meaningful to an individual. Is that what you are saying?
Ms Bayefsky: Let me clarify. I also mentioned -- I should have repeated it -- that there is a fourth instrument in the European Convention on Human Rights that deals primarily with civil and political rights: freedom from torture, freedom of expression and so on. It has within it two or three rights that could be classified as economic rights and are subject to judicial interpretation. That judicial interpretation, or quasi-judicial in the case of the European Commission of Human Rights, has introduced a concept of undue burden on public funds. So with respect to the meaning of the other economic, social and cultural rights, for instance in the International Covenant on Economic, Social and Cultural Rights, one that emanates from the United Nations, you never have individual complaints that are interpreted by a judicial or quasi-judicial body. So we have very little idea of how those would be applied in the framework of a right of individual petition.
Mrs Y. O'Neill: So it seems from what you have said, and as much as I can understand all the circumstances that you related to us, these documents have not yet really come to life, or individuals have not benefited directly, with all the good intent and all that is there. That is the issue I am trying to understand. I suppose it is very similar to our charter and what you were just explaining with Mr Harnick, that it just does not seem to happen the way the individuals, the persons whose hopefulness is raised by the coming together of such a document -- that hopefulness somehow does not happen, does not come to fruition.
Ms Bayefsky: Let me answer your question by saying the international human rights community believes, I think, that the mere setting of standards set out in agreements to which states turn their attention and ratify and are urged to ratify every year -- the General Assembly -- is not an insignificant event for individuals, that this is something, at least in free societies, to which individuals can turn and use as tools to encourage their governments to change social or economic policy. So as a standard it has some impact.
Now, of course, the other side of that is that in the absence of a right to complain as individuals or as members of groups to some body about violations of the terms of those agreements, they are very much weaker in their effect than those civil and political rights documents that allow for individuals to complain, because the individual has a direct interest in seeing them enforced. The international community in general has been very reluctant to grant individuals that ability to complain about violations of economic and social rights. So yes, the enforcement mechanism associated with economic rights is very much poorer than civil and political rights. It does not mean it is totally ineffectual. It does have its impact as a statement of intent and something to look up to, but if we just turn to Canada and we ask what difference has the economic, social and cultural rights covenant has made to Canadian law, you have to look very hard to find the difference. But it is a tool. If people were more aware of it, it would provide a source for public interest groups to lobby.
Mrs Y. O'Neill: Mr Chairman, I reluctantly pass.
The Vice-Chair: That is quite all right. Mr Malkowski.
Mr Malkowski: Thank you for such an excellent presentation. It helps me to realize the three areas we would be asking for clarification on, because the Canadian charter seems to be weak, especially when you talk about the international conventions. If we look at individual rights, are you saying then that group rights should be more focused on? It was not very clear to me, individual rights and group rights and how those cash themselves out internationally.
Ms Bayefsky: I recently read an article on economic rights by someone who is very much an authority on this subject, and he was very reluctant to classify economic and social rights as group rights. The reason for his reluctance was that group rights and international laws seem to be something that states were going to shy away from, and the concept of systemic complaints requiring systemic remedies was something that would not get very far with the international community. So he said, in his words, "After all, it's the individual that starves to death."
I am not sure how fruitful it is to enter the debate as to whether economic, social and cultural rights are group rights or individual rights. I think the real question that has to be asked is, what kind of remedies do those rights or human needs require? I think in general the economic, social and cultural rights address themselves to systemic issues and therefore call for systemic remedies.
My concern about the place of the judiciary in enforcing those remedies arises from that analysis. I worry about the judges in Canada being capable of identifying the appropriate systemic remedies, taking the broad-based social evidence that would be required to understand and develop the appropriate remedy and just simply coming to terms with solutions in the area of economic, social and cultural rights.
But when I grappled with this and the committee asked me about this specifically, I did not thereby come to the conclusion that there ought to be no right of individual petition associated with economic, social and cultural rights. It seems to me that the task is to be creative about fashioning a remedy associated with economic, social and cultural rights that may indeed arise from a right of individual petition or individual complaint mechanism. The only question is, who is going to listen to the complaint and how is it going to be dealt with? It does not mean that we simply stand back then and say they are simply on two different planes, and one is merely a declaratory statement of aspirations and the other can be enforced. I would not go that far.
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Mr Winninger: Professor Bayefsky, you call for the reform of the judicial selection procedure and I wondered if you look with favour on the kind of public confirmation hearings they have for Supreme Court justices in the United States.
Ms Bayefsky: I think in general my answer is yes. Although we have all kinds of phobias about being American or seeming as if we are even inching towards US models, I think in general the idea that the individuals in our highest courts should be selected from people who have subjected themselves to certain question-and-answer sessions, and that their individual records have been carefully examined by the public, is legitimate, especially in the context of an enhanced judicial authority.
Mr Winninger: I see. Thank you.
Mr Offer: You have spoken with some concern over section 33, the override clause. As I heard your presentation, you proposed the removal of section 33. I do not wish to put words in your mouth, but that is what I heard, the removal of section 33, but only with a reform of the parliamentary process basically.
Ms Bayefsky: Judicial selection.
Mr Offer: Judicial. In other words, if section 33 is to be removed, then there must be reform of the judicial process. I guess my question is, what comes first?
Ms Bayefsky: For the moment, we are in the midst of constitutional negotiation. So I think what comes first is the removal of section 33, in terms of the timetable which appears to be before me at the present time. But I think there has to be some sort of concomitant political commitment, albeit not constitutional, to reform the selection of the judiciary, which of course is not an impossible task and probably far more easily accomplished than the amendment to the Constitution.
Mr Offer: One of the points in section 33 is the revisitation, the sunset after five years. I wonder if you would share with us your thoughts as to whether the fact that there has to be a revisiting of the issue within five years and thereafter, as it is, whether that in any way diminishes concern with section 33.
Ms Bayefsky: It diminishes concern in some respects. It forces it on to the public mind again; but if debate is non-existent, as was the case with the PQ's original use of it, then the debate will be non-existent five years later. I do not think it is much consolation to those individuals who either had to put up with a diminution of their rights for the first five years, or is something they can particularly look forward to when the five years are up.
Mr Drainville: Thank you very much for your presentation. I would like to take us back to the social charter; I have a question about that. Acknowledging first of all the great difference between civil and political rights and social and economic rights, and acknowledging also the very great difficulty that one can imagine in trying to ascertain how one might effectively ensure that such economic and social rights are enforced, we come to a problem in this country, and at this particular time right across the country, whether we read the Spicer committee report or the deputations that people have made to this committee, or deputations made to other groups in Canada.
What we have seen is a very strong sense in which many people in Canada feel we have a social contract in this country which is extremely important to how we live and to our future together as a nation. In that respect, what we are challenged with as politicians and in terms of the future of this country is, how do we somehow link that hope and that vision of a social charter, which many people have in this country, with the realpolitik of what we have to do to make this country work, with systems and structures and a Constitution that is going to represent the aspirations of those people and also a document that is going to work for the betterment of those people as well?
Of course, we get into some really great difficulties with all of this. We can acknowledge -- and I would ask if you could acknowledge this -- that there is obviously a sense that Canada has a social charter which our history has indicated, that we as a nation want to believe that we must provide education, social services and health services and the rest of those things that are so important. Now, if that is true, do you have any advice that you can give us as a committee on how we can make such a social charter something that will work in Canada?
Ms Bayefsky: First of all, it seems to me -- although we are very keen on Constitution-making in this country, and I as a constitutional law professor am only too happy to see it come alive -- that not all aspirations have to be in the Constitution. We have to be selective about what is appropriate to constitutionalize and what is not. In other words, we have to cut short our tendency to overburden our Constitution and what is expected from it.
Simply because we have a social contract and certain common or shared understandings as to what government ought to be providing for its citizens, or what standard of living or health care ought to be in existence across the country, and so on -- to say that they should not be put in the Constitution is not to say they should not exist or are not part of our fundamental compact.
Let me make another point, that governmental responsibility has to come first in ensuring that those economic and social needs are met; that to expect a charter of rights or social rights can do it somehow in place of governmental economic and social policy is wrong-headed and does not make it work.
Whatever this grand constitutional lawmaking scheme may be that is out there at the moment, trading a federal responsibility for social welfare or certain divisions of power between federal and provincial governments, and shifting them around hoping that a social charter of rights is going to take the overflow or is going to be a safety net -- in my view that is not going to be effective. Ultimately it comes down to having the right kinds of governments in place that are going to provide for that social safety net.
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Lastly, it is not so much a matter of agreeing, regardless of what political party people are associated with, that there are certain basic minimums which are part of our Canadian traditions or sentiments or values. Even if we can agree about them in terms of a charter of rights -- and I think we can; I am not so pessimistic in a great many respects -- the question is one of competence for fashioning remedies. In so far as a charter of rights means a document that requires individuals to have enough money to go before courts, and then to have courts provide us with solutions for an individual case and not fashion remedies for the group or even a social group, that whole system seems very ill-equipped to provide the remedies necessary for social and economic rights.
I do not think the way to make it effective is to hand over to the judiciary the task of deciding what social services are minimally necessary or to what extent, or what the standard minimum wage ought to be, or those kinds of things. I think one has to be very selective at deciding what the judiciary can handle and, where the judiciary cannot handle it, what other kinds of remedies we can come up with, like reports to Parliament perhaps, or complaints to ombudsman-type individuals.
The Vice-Chair: Mr White, one last short question, before recessing.
Mr White: You mentioned some concerns with regard to the amendment process and specifically what had been problematical in the past, what had not been successful, and what you envision would be occurring in the next short while. Do you have any concrete suggestions as to how to get around those criticisms, the exclusivity of the process that you elaborated upon, for example?
Ms Bayefsky: I think one concrete thing I would say comes from reading the Globe and Mail's recent report on where this committee goes from here; that is my only source of information. The committee's public hearings will end before the substantive federal proposal is on the table. I understand there will be some kind of constituent assembly in October -- a two-day process or whatever it is -- but short of that, there are no public hearings anticipated as far as I understand it.
With all due respect, that is unsatisfactory. It seems to me that if the Meech Lake process is to be avoided, public hearings have to be held on the substance of concrete proposals and not be held in a vacuum. In some respects, the idea of holding public hearings on the agenda for reform is entirely appropriate, but it seems to me a second stage of public hearings is required in order to make that input effective and to give a feeling of general satisfaction.
If the federal government is the only entity which has those public hearings, knowing full well that it has an intention of wrapping things up in a very short period of time, I do not think that is going to be satisfactory to the majority of the public in Ontario, if I may be so bold.
The Vice-Chair: Ms Bayefsky, do you have any closing comments at this point?
Ms Bayefsky: No, I do not. Good luck.
The Vice-Chair: Thank you very much. The committee will be in recess until 4 o'clock this afternoon.
The committee recessed at 1505.
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ROBERT E. ROBERTSON
The Vice-Chair: The committee will come back to order. We are now going to be hearing from Mr Robert Robertson, who is from the International Development Research Centre in Ottawa and is going to speak to us on social and economic rights. It is my understanding that Mr Robertson has about a 15-minute presentation. If Mr Robertson is ready, he can start and we will go to questions afterwards.
Mr Robertson: I want to thank the committee for its invitation to be here today. Although I have been invited to address all the questions under the heading of the Charter of Rights, my own area of study has been on the issue of social and economic rights. Therefore, I think I might be most helpful to the committee if I were to spend my time on those questions which deal specifically with that issue. They are the 7th through 11th questions in your list. I should also say that as the right to food has been my principal area of interest and the one I have written on, I will refer to the concepts underlying that right to illustrate my presentation.
The first question asks whether economic and social rights should have constitutional standing. My answer is yes, because they are of equal value to civil and political rights which do have constitutional standing. They are equal within the international human rights system, and Canada is a party to international agreements which treat these two sets of rights as being equal. Neither set of rights on its own guarantees the full development of one's personality and character. A person who is well fed and well housed but lacks civil and political rights is only half a person. Someone whose physical and intellectual capacity is diminished by the absence of the basic necessities of life cannot play a full role in the civil and political life of the society. I do not think there will be much argument that the two sets of rights deal with issues of equal importance.
I think where the argument arises with economic and social rights is whether it is feasible and desirable to treat them as legal rights as opposed to policy goals. I think there are at least four good reasons why it is desirable.
First, the rights have never been fully implemented or achieved in the absence of laws which establish them as constitutional rights available to individual citizens. This argument is simple. We have 124 years of history as a nation. At no time have all our citizens enjoyed economic and social security. At times, many of them have been desperately deprived of it. At the present time, in the area of the availability of food, for example, things seem to be getting worse. If one believes that individuals who through no fault of their own lack the basic necessities of life should have the right to such necessities, they must have the legal means to assert such a right. Social policies alone have offered no continuing guarantees of this kind.
The second reason to treat economic and social rights as constitutional rights is that it establishes them as priorities for the society and as a valid expression of our deepest values. Human rights are about priority setting. They express the values of the society, which act as the touchstone for its governance. I believe societies should establish for themselves fundamental principles, the observance of which the society believes will lead to the best possible country, principles which are not subject to political expediency or bureaucratic alteration. That being said, what could be of more value to us than the idea that a child should be well fed or that a disabled person should be well housed? If we believe that such ideas stand at the heart of our collective value system, then they should be treated as such by embodying them in the country's most important statement of principles, the Constitution.
The third reason such rights should be in the Constitution is that international law would seem to require more from us than we are now doing. In the food area, for example, there are over 100 documents relevant to the right to food, and Canada has signed many of them. The most important document is the International Covenant on Economic, Social and Cultural Rights, which says in article 11 that everyone has the right to an adequate standard of living, including adequate food, shelter and clothing.
The covenant also makes clear that states are obliged to bring to bear their maximum available resources to ensure the establishment of such rights. The wording of this covenant, which Canada has never transformed into domestic law, points up three serious deficiencies in our country.
First, it is everyone who has economic and social rights. The fact that the people of this country may be generally well fed, clothed and housed is not the most important thing. The important thing is whether everyone is. We are speaking of individual human rights, and at the present time individuals do not have a constitutional mechanism to claim such rights.
Second, it is government that is responsible for achieving the rights. Individuals have a right to make their claim against government. In international law, private charity is not an acceptable substitute for the devoting of public resources to feeding, clothing or housing people.
Third, the state must devote its maximum available resources. There is no expectation that desperately poor Third World countries can immediately establish economic and social rights.
There is an expectation that issues such as food, shelter, clothing, health and education will have a priority claim on public resources, as against those uses of public funds which do not represent the fulfilling of a human right. To fully live up to our international commitments, I believe we must establish these rights as fundamental law.
The fourth reason such rights should be in the Constitution is that establishing them as constitutional rights in Canada could have a positive effect in promoting human development in other countries and on the international human rights system. Activists and lawyers working in the human rights field know the immense value of the internationalization of civil and political rights. The international law is cited in domestic courts, is used as a standard in denouncing such evils as torture and political imprisonment in rights-abusing countries, and developing countries look to the experience of other countries with long histories in the civil and political rights field in forming their laws to protect such rights.
But economic and social rights, as important as they are, have never taken off as legal concepts designed to govern the actions of states domestically and internationally. For a respected country like Canada to recognize them in its Constitution would provide a jolt of energy to such rights achieving their proper international recognition. Rights are dynamic. Their acceptance in one country speeds their acceptance and the benefits they bring in other countries.
The International Covenant on Economic, Social and Cultural Rights says that countries should move towards establishing economic, social and cultural rights internationally as well as domestically, so I believe that for Canada to give them constitutional recognition is one indirect way to promote them internationally.
The next question you have asked is what rights should be incorporated into the charter. I obviously believe that rights relating to an adequate standard of living should be there, and I think that every day, as the lineups at food banks grow longer, the Canadian people are increasingly prepared to acknowledge that we cannot go on this way. There would be a great deal of sympathy for the proposition that there should be established the right to an adequate standard of living. Beyond that, I think anything which is essential to the full physical and intellectual development of a person is a matter for constitutional recognition.
My hope would be that Ontario, in setting out the rights it thinks should be in the charter, would give priority to those rights to which Canada has committed itself internationally, and indeed that the wording in the charter would reflect the international wording as closely as possible so that Canadian judges could have access to some of the splendid international scholarship to assist them in elaborating the principles in Canadian law.
The next question is what limitations should apply to these rights. I have already hinted at my answer with respect to the rights required to ensure an adequate standard of living. Our international obligation is to apply the maximum available resources. Therefore, the only limitation I would place on the rights is that a court may find that the resources do not exist. Despite our current fiscal problems, if absolute priority is assigned to fulfilling basic economic and social rights, I find it hard to believe that we would not have the resources to do the job.
The next question is how such rights should be enforced. I cannot deny the immense intellectual challenges facing those charged with the responsibility of determining how such rights would be enforced. I must say that time simply would not permit me to fully explore this question, and also I make no claim to have thought through all the implications myself. I certainly believe that these rights must have enforcement mechanisms as strong and as accessible as those now available to people whose civil and political rights have been abused. For the enlightenment of the committee, I might simply go over what are perceived as the duties of the state in implementing the right to food to illustrate the kinds of enforcement mechanisms which might be required. I take this list of duties from the private scholarship in the area and from United Nations reports.
States have three duties: to respect the right to food, to protect the right to food and to fulfil the right to food.
The first obligation, to respect the right to food, means that states should not interfere in cases where individuals or groups can take care of their own needs. For example, this would be an argument against the expropriation of food-yielding land for non-food purposes if people were truly dependent on that land for their nourishment. Another example where the right could be asserted would be the case of the Innu of Labrador, who are fighting low-altitude NATO flights over their territory because they claim they adversely affect the game upon which they are dependent. I think that respecting the right to food fits in very nicely with the present charter purpose of stopping government action which is unconstitutional.
The second obligation, protecting the right to food, means that states must counteract or prevent activities by others which negatively affect food security. For example, the pollution by industry of streams upon which aboriginal peoples depend for fish would be a case where the courts would have to mandate government to take preventive action.
The third obligation, to fulfil the right to food, requires the state to provide the food or the means to get it. To enforce this obligation, the courts might very well be required to examine levels of social assistance and make judgements as to their adequacy. This is how I see the right to food being enforced. Obviously it means greater judicial powers.
The final question relates to the experience of other states. There are numerous communist states and developing countries which have constitutional provisions on economic and social rights. Perhaps of greater relevance to this exercise, however, is the law of other western countries. The right to health is established in the constitutions of Italy, Spain and Greece. The right to shelter is in the Greek and Spanish constitutions. The right to social security is in the Dutch and Spanish constitutions. Regrettably, the library resources at my disposal in Ottawa did not contain any material on how these provisions have worked in practice.
One other example where there is some literature is the Irish Constitution, which has a provision called "Directive Principles of Social Policy," which are stated as being for the general guidance of Parliament and not cognizable by a court. However, the courts have said they will have regard to these principles as a guide to interpreting the content of other constitutional provisions.
Finally, of course, we should not forget the fact that our present charter itself may have economic and social rights in it. The Supreme Court of Canada has explicitly left open the possibility that the "security of the person" provisions in section 7 may encompass rights related to the basic necessities of life. The Supreme Court of British Columbia has only recently held that persons receiving social assistance constitute a group which may be protected under the section 15 "equality rights" provision of the charter. Nevertheless, because the charter is now an instrument designed essentially to prevent governmental action, it is highly unlikely that in its present form it could ever lead to the fulfilling of economic and social rights.
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Obviously time restraints have required me to deal with many of these complicated issues in a cursory way. I would be most happy to answer any questions I can. I will also leave with you this more detailed study which I wrote on the right to food in Canada, to which some members of the committee and its staff may wish to make further reference.
Mr Malkowski: Thank you for your presentation related to the right to food. There are three you talked about: welfare, protection of farm land and the right to the satisfaction of those needs. Do you think the Canadian Constitution can protect all of those three areas? If not, what other countries could we look to to follow that model?
Mr Robertson: I do not see why not. I have not, in all of the research I have done, come across in-depth discussions of what other countries have done in this area. They may exist, I do not know, but unfortunately I cannot bring to bear any intelligence on that issue.
I do not see why in the food area it could not have constitutional standing and why a court could not adequately adjudicate on it. The three areas I have outlined where the right to food applies -- respect, protect and fulfil -- seem to me to be areas where the courts could very easily make judgements, provided they had proper empirical data to base their conclusions upon and had access to the scholarship which would allow them to determine what the right to food, for example, means.
I know courts protest that they do not want to get into social and economic policy-making, but I think they probably protest too much on that issue. When the courts say you cannot have a ban on tobacco advertising, they are engaging in social policy-making. When they say people are not getting speedy trials, they are instructing government, in effect, to spend more money to ensure that a right is available to people. So I think the judiciary, if proper arguments are put to them, are quite capable of passing judgement on economic and social rights.
Mr Harnick: The previous witness, Anne Bayefsky, professor of law at the University of Ottawa, told us a couple of things I would like you to comment upon. She said, first, that it would be wrong to assume that a constitution can contain all the rights everybody could possibly think of. She said that particularly in the context of economic and social rights. She also said there comes a point where you cannot fetter the right of governments to set policy.
Where do you draw the line? That is essentially the opinion I would like to elicit from you. As well, she indicated that courts may not be the most appropriate body to adjudicate when dealing with economic and social rights. I would not mind your commenting on that as well.
Mr Robertson: There certainly has been in the last 10 or 15 years an explosion of rights. Just the list of human rights which people have advocated is a very long one. I am sure she is right, that you cannot look at all the rights which people are advocating and put them in your Constitution. Social and economic rights are what are called the second generation of rights. There is now a third generation of rights, such as the right to impart and receive information. There is the right to participate. There is the international right to development. There is a long list of these things, and I certainly agree with Professor Bayefsky that we cannot put them all in there.
I think I would go back to the point I made in my paper, which is that we look at what we think our fundamental values are, and once we have decided what they are, we look at those expressions of human rights which exist in the international sphere and which can appropriately be justiciable by a court. I have made the point that I think certain basic economic rights relating to standards of living are appropriate for inclusion in a Constitution.
Judges, I suppose, do a lot of things they do not feel themselves completely prepared to do, but in the right to food, for example, I think the senior levels of our judiciary are quite capable of understanding those principles and applying them in as fair and appropriate a way as they are with respect to civil and political rights.
Mr White: Mr Harnick asked a couple of the very questions I was going to. I wonder if I can go a little bit further than that, though. I am curious what your thought is on why there seems to be the distinction with civil and political rights and those who advocate we should go as far as we can in that arena, but suggest in terms of social and economic rights that they should not be included, should not be articulated in the Constitution. I wonder if you have any theory to suggest as to judges being reluctant to comment on those social and economic issues.
Mr Robertson: Your question is, why do people doubt that we should have these rights in our Constitution? I think it is a historical question. Obviously in western society civil and political rights have been the things we have emphasized. They are part of our constitutional history. Major western countries like the United States have never signed on to economic, social and cultural rights as rights. They have not signed the international covenant with respect to those rights, for example, so I think it is simply not as much a part of the western tradition as civil and political rights are.
The other reason is that civil and political rights have, generally speaking, been thought of as rights which the individual uses to stop governmental action, whereas economic and social rights are rights an individual uses, or would use, to compel governmental action. That is generally true, but there are exceptions to that. We have the civil right to a fair trial. Obviously government is required to spend a lot of money to ensure that we have that.
On the other hand, as I pointed out in my paper on some aspects of the right to food, I expect if other economic and social rights are the same kinds of rights that civil and political rights generally are, it is stopping governmental action, as opposed to compelling government to commit resources to fulfil the right.
At the same time, you can see that many governments would not wish a circumstance where they are compelled to spend public funds on the basis of somebody on the judiciary saying that they were not spending enough money on social assistance, for example. Every economic and social right probably gets in the way of some politicians' political desires for a particular policy, and so there is going to be resistance on that part. Also, economic and social rights have in the past been associated as communistic or socialistic and they have gotten a bum rap because of that, I think. So there are a lot of historical and political and economic reasons why there has been a resistance to it.
Another reason is that when we speak about the judiciary, unfortunately many lawyers and many judges simply have not studied and are not aware of economic and social rights and the international jurisprudence on them and so on, so I think they would feel initially quite uncomfortable in dealing with some of the concepts, but over time, as intelligent people, if they have the right arguments put to them, they will begin to understand them.
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Mr Offer: Mr Robertson, you spoke in your presentation in terms of it being feasible and desirable to treat social and economic rights as legal rights, and you went on and gave four reasons for that. In your reasons you said it was desirable and you went on to express the four. I notice the word "feasible" was left out, and I wonder if that was purposely done or not, and I was wondering in terms of your presentation if there is a message we should take in terms of the feasibility of the proposition you espouse.
Mr Robertson: I think you are right to point out that probably in my arguments I left that hole, but perhaps I have tried to address it in some of the answers I have given. I think it is quite feasible with respect to the right to food. If we look at the three kinds of state obligations that we see with respect to the right to food and the examples I gave, I think it is quite feasible for a court to pass judgement on those things and I think it is quite feasible for a government to respond to the court judgements which are made.
Mr Offer: If I might have one short follow-up question to that, without commenting directly on a particular right, you have in your presentation lumped social and economic rights together. There may be those who say that that in many situations those will be viewed not as being together but rather as being apart, and in fact there are those who say that in terms of economic rights there is the right of the general public in terms of an undue burden on public funds. I wonder if you can share with the committee your thoughts as to the possible economic right of undue burden on public funds vis-a-vis the social rights.
Mr Robertson: I have not seen a right characterized in that way in the reading I have done in the field. A lot of people talk of a right to this or a right to that, but I think when we really get down to it, we have to see some kind of official and formal recognition of something as being a right, and the right you have characterized as the right of the public not to have an undue burden is not a right I have seen anywhere.
In 1976, when the federal government and all the provinces decided it was appropriate for Canada to sign the international covenant on economic and social rights, I think they implicitly made that judgement. They made the judgement that these were rights they wanted to fulfil and they signed on to the wording of that covenant. As I said, they are individual rights which I think the Canadian state has recognized and said should be individual rights and has committed itself to fulfilling.
I do not think there is any such thing as the right of the people not to have an undue burden placed upon them. That is a political question, but it is certainly not a right which has been discussed that I am aware of in any of the literature on the subject.
Mr Offer: If there was a right to, for instance, shelter -- I would like to carry this on -- and I think that is one of the examples you used, that would potentially give everyone the right, through legal recourse, to say they are entitled to not only shelter but a particular form of shelter. Would you in that instance be prepared to say that all individuals may argue that they are entitled to that shelter, within a certain reasonableness, no matter what the cost is to the public purse and no matter what other form of housing government may use as an alternative, if the individual feels his rights are still not fully expressed in the government program?
Mr Robertson: I would expect that a court would have to make a judgement with respect to adequacy of housing; in other words, is the housing of sufficient quality that it would be thought to be generally acceptable by the populace, or some kind of standard like that?
The court would then also have to make a judgement, I suppose, upon the system which had been set up by government to determine the eligibility of individuals to housing. As part of that consideration, one will look at the resources available to individuals or the resources which could be made available to individuals through their own labours. But if you have a disabled person who is unemployable, then I would certainly argue that the resources of the society should be made available to make sure that person is adequately housed. At some stage, somebody would have to make a determination on the wording of the covenant, which says that the maximum available resources of the society are being used to fulfil that right.
I think it is a question of priorities. It is not easy to make that judgement. On the other hand, that judgement has to be made at some stage if you are going to treat these things as rights.
The Vice-Chair: We are running out of time, Mr Offer. Very quickly.
Mr Offer: No one would disagree in terms of the need for housing and certainly making housing available to a whole variety of individuals, but the question I ask you, and I think you have been addressing it, is this: that a question that should be found within the Constitution in terms of priority or should that be a question which any particular government, whether one agrees or disagrees, should set in terms of its ability to prioritize those things which are important to that government and which it takes to the people of whatever area it seems to be governing.
Mr Robertson: I think another way of stating your question is, should they be individual rights or should they not be individual rights? If you say they are individual rights, then you have to treat them as rights in the way you would treat civil and political rights and you have to give people the legal mechanisms which allow them to claim those rights.
You have really posed the first question again. Should they be in the charter or should they not be? I have said they should be there, because I think they are of fundamental importance to the country and I also think that we have committed ourselves internationally to that. We have said they are rights and we have to treat them as rights.
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Mr Drainville: I am very glad you are here in front of us, particularly for taking the line you have today, speaking about hunger in Canada and the relevance of that issue.
In 1985, I wrote a book called Poverty in Canada. Some of the points you have raised today about the necessity of adding elements to the social charter in Canada and entrenching those things for all Canadians were issues I raised in that book. You have raised two distinctions which I find very helpful. One is, what are the fundamental values of the nation?
There is no question that in all the discussions going on today across Canada in various forums, what we have from Canadians is that there is a sense in which, at a fundamental level, we believe there is a social contract that has been established by governments and by the people of Canada in the past. Their support of that social contract is such that many of these people want to see this somehow entrenched in the Constitution. They have raised this issue with the various groups.
You have indicated, and I think very appropriately, that judges already make decisions that have political and economic ramifications. It is not so simple to make the distinction between civil and political elements and social and economic elements. You mentioned the Askov decision and how in making that particular decision there was a financial or economic fallout from that. I think that point is well made. The point that always has concerned me is that the rights we so obviously adhere to in the Charter of Rights and Freedoms, and which are great rights, are by and large middle-class rights.
Let me unpack that when I say that. In Canada, freedom of religion, freedom of the press and freedom of expression and things like that are very much rights that are owned and accessed by individuals who economically benefit in our society. Those who are poor and those who are not privileged and those who have many more problems to deal with in their own lives do not have access to even those that are entrenched in the Constitution. That is what we see.
We see that across the country. You mentioned, for instance, people who are hungry. The problem of hunger is a major problem in this country. If you talk to any individuals, you would see that those individuals would readily acknowledge that of course it is wrong for individuals to starve or be malnourished or have problems finding food. Yet we still do not have a mechanism or a means by which we can ensure that people are cared for.
It brings me to the last point, and that is that from the last deputant we had earlier on today and yourself the question arises as to how you can introduce the kinds of changes to the Charter of Rights and Freedoms that you are talking about without putting the government or the politicians, or whatever, into a straitjacket and, in a sense, forcing them to deal with an issue which they economically might not be able to deal with in the future. This is the case, that if the majority of people in Canada vote for a particular party then surely that political party should be providing what the people of Canada expect.
In terms of any response you have, I wonder if you could respond to the concern people have about putting that kind of difficulty or roadblock in front of our political wing.
Mr Robertson: Obviously things called economic and social rights are not particularly well understood by the person on the street. They maintain a very low profile internationally. There would have to be a good deal of public education, led by politicals and by interested groups, on these issues for them to become more widely supported in a formal way by Canadians than they are now.
It is certainly easier to get agreement on economic and social rights or programs when everybody is affected by them. Obviously everybody needs health care and that is widely supported simply because everybody ends up going to the hospital at one time or another or goes to doctors, so you find wide public support for it. Not everybody goes to food banks, so it is more difficult to get public support for that, and yet food is just as important and is a major component of health.
Civil and political rights are middle class to the extent that the middle class has more opportunity to use them effectively. Obviously poverty groups can use freedom of expression quite nicely, but they do not own newspapers and they do not own television stations and therefore they have more difficulty getting wide circulation of those views.
I was surprised actually when I started studying in this area, which probably was not as long ago as you did. These things seemed to me to be very insubstantial and airy-fairy and philosophical, and just in a very short period of time, four or five years, we have committees of the Ontario Legislature studying them in this way. I think the process of public education is going along very nicely and at some stage, maybe not in this round but at some stage, I am sure there will be some greater formal recognition of them as rights because I think they are the only answer to the problems our society has. Social policy is not answering the needs of the people and so you give human rights a try and see what happens.
Mrs Mathyssen: Generally you seem quite prepared to do all kinds of studies to determine the costs -- or the burden, some would say -- of economic and social rights like food and housing on our society. Has anyone ever done a study to determine the cost to our society if we do not fulfil these basic rights for vulnerable people?
Mr Robertson: I do not know. I asked a social worker that question about a month ago with respect to children who were deprived of various things. We all assume that children who are not well fed are more likely to grow up to be criminal or intellectually handicapped and those kinds of things. I was told there is surprisingly little literature on those kinds of subjects. I think the Ontario government at the moment is funding some studies which are now beginning to address those questions.
It is a very good point, because with respect to the previous question, the right to food or shelter cannot be viewed as just being for the benefit of the individual who lacks food or shelter. I think it is in my best interest that other people grow up well fed and well housed, because that is going to have a direct effect upon the society in which I am living. That is one of the major arguments I fail to make in my paper but which has to be made in order to encourage public support for these rights.
Mrs Mathyssen: Do you think it is an essential step in terms of our maturation as a nation that we have to move in this direction to show we are a humanistic and mature nation?
Mr Robertson: We are all looking for Canadian characteristics. We are all looking for an identity. We are all looking for some individualism from ourselves as a nation, and this would certainly be one area where we have treated ourselves as a community and have established certain principles for ourselves. We have said the entire community is going to have these rights. That would distinguish us very considerably from the United States, for example. I think it is indicative of maturation as a country. It is certainly indicative of enlightened political decision-making.
Mr White: The issue about the inclusion of social rights: To your knowledge, was there was a similar problem with regard to the inclusion of social rights in Europe when these ideas were first brought forth? I wonder if we could learn in terms of our experience.
Mr Robertson: I do not really know what the arguments were at the time that the European social charter, for example, was developed. I am not aware of that. I know that in the Irish example which I cited, those were provisions which were drafted in the 1930s and which, I have read, were characterized by a kind of Catholic social activism which was current at that time. The Irish Constitution tried to set down the principles which were guiding that particular political and philosophical and religious movement at that time. But I honestly cannot answer with respect to other European countries or the European system in general. I do not know. I would expect the questions to be relatively similar to the ones we are asking ourselves today.
Mr White: When those issues are interpreted in court, would it tend to be the case that they are interpreted somewhat on the cautious side in terms of issues such as food provision and shelter?
Mr Robertson: I do not know too much about what the pan-European courts have done on these issues, and I have not been able to identify what domestic courts have done. With domestic courts, which would be making judgements which deeply affect the political decision-making which has gone on, I think there would naturally be some conservatism in the beginning. But then, as has been the case with civil and political rights, a judge would come along now and again who decided that he was really going to make a point, and he would make the point. There would eventually be some leadership from the Supreme Court of Canada, which has provided very nice leadership in the civil and political area during the last decade. These things would be gradually developed. I think there would be conservatism in the beginning, but then as people understood their rights more and more they would be more willing to really breath life into them.
The Vice-Chair: Mr Robertson, are there any last words you have for the committee?
Mr Robertson: No, I am just glad you are talking about these kinds of things. Good luck to you and thank you for the opportunity.
The Vice-Chair: We thank you very much for your presentation. The committee will now be adjourned until tomorrow morning at 11 o'clock. Until then we stand in recess.
The committee adjourned at 1649.