Assemblée législative de l'Ontario

ASSOCIATION CANADIENNE-FRANÇAISE DE L'ONTARIO

ONTARIO TEACHERS' FEDERATION

URBAN ALLIANCE ON RACE RELATIONS

ONTARIO REAL ESTATE ASSOCIATION

CONTENTS

Monday 25 November 1991

Association canadienne-française de l'Ontario

Ontario Teachers' Federation

Urban Alliance on Race Relations

Ontario Real Estate Association

SELECT COMMITTEE ON ONTARIO IN CONFEDERATION

Chair: Drainville, Dennis (Victoria-Haliburton NDP)

Acting Chair: Winninger, David (London South NDP)

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

Carter, Jenny (Peterborough NDP)

Curling, Alvin (Scarborough North L)

Eves, Ernie L. (Parry Sound PC)

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)

Clerk: Brown, Harold

Staff:

Kaye, Philip J., Research Officer, Legislative Research Service

Drummond, Alison, Research Officer, Legislative Research Service

The committee met at 1912 in room 151.

Clerk of the Committee: I wish to advise the members of the committee that the Chair and the Vice-Chair are not present this evening. I would call upon you to select an Acting Chair for tonight's meeting.

Mrs Mathyssen: I would move that Mr Winninger take the chair this evening.

Clerk of the Committee: Thank you. It has been moved that Mr Winninger act as Chair for this evening's meeting. All those in favour say "aye." Contrary?

Agreed to.

ASSOCIATION CANADIENNE-FRANÇAISE DE L'ONTARIO

The Acting Chair (Mr Winninger): As Acting Chair, I would like to say bienvenue tonight to the Association canadienne-française de l'Ontario. We have your written brief and we look forward to your oral presentation, but before we hear from you, perhaps you could introduce yourselves so we know who you are.

M. Tanguay : J'aimerais vous présenter Me Yves LeBouthillier, qui est professeur en droit, en common law, à l'Université d'Ottawa et membre du comité constitutionnel de l'Association canadienne-française de l'Ontario, et aussi M. Fernand Gilbert, qui est le directeur général de l'Association et qui lui aussi siège au comité constitutionnel de l'Association.

The Acting Chair (Mr Winninger) : Merci. I would like to remind you that you have half an hour for your presentation tonight. Please, commencez.

M. Tanguay : Merci beaucoup. Au nom de la communauté franco-ontarienne et en mon nom personnel, je tiens à vous remercier d'avoir invité l'Association canadienne-française de l'Ontario à venir vous présenter sa réaction aux propositions de modifications constitutionnelles et d'ententes administratives élaborées par le gouvernement du Canada.

D'entrée de jeu, je dois vous mentionner que l'ACFO n'entend pas vous entretenir de l'ensemble des 28 propositions fédérales, mais plutôt de celles qui touchent et rejoignent de façon particulière les buts que la communauté franco-ontarienne se propose d'atteindre en matière constitutionnelle.

Ces objectifs, que vous connaissez sans aucun doute, ont trait à la reconnaissance constitutionnelle en Ontario du français comme langue officielle, du droit à l'autogestion et à des services en langue française gérés et contrôlés par la communauté franco-ontarienne dans le domaine de l'éducation, et du droit à la gestion pleine et entière et à des services en langue française gérés et contrôlés par la communauté franco-ontarienne dans le domaine des caisses populaires.

En matière constitutionnelle, les Franco-Ontariens et les Franco-Ontariennes aspirent également à la création, la protection et la promotion d'institutions à caractère social, culturel et économique qu'ils pourraient gérer et contrôler. Nous désirons également être associés, comme partenaires à part entière, au processus actuel de modification de la constitution canadienne.

De plus, nous voulons nous assurer que toute passation et toute délégation de pouvoir entre les instances fédérales, provinciales et municipales soient accompagnées d'une garantie du respect des droits acquis, et ceux susceptibles de l'être, de la communauté franco-ontarienne. Finalement, il nous paraît fondamental que le renouvellement du fédéralisme canadien soit promu dans le respect de tous les droits individuels et collectifs des communautés qui tissent le canevas de notre société.

À la lumière de ces objectifs, j'aimerais donc vous entretenir aujourd'hui des propositions fédérales suivantes : la proposition numéro 2, reconnaissance du caractère distinct du Québec et de la dualité linguistique du Canada ; la proposition numéro 7, qui traite de la clause Canada dans la constitution ; les propositions numéros 9, 10 et 11, qui abordent respectivement les principes et les détails de la réforme du Sénat et la ratification par le Sénat des nominations aux conseils et organismes de réglementation ; la proposition numéro 12 portant sur les nominations à la Cour suprême du Canada ; la proposition numéro 22 sur le pouvoir résiduel ; et finalement, la proposition numéro 25 ayant trait à la délégation des pouvoirs législatifs.

Avant de commencer mon exposé, j'aimerais attirer votre attention sur le document que nous vous avons distribué. Ce document n'a malheureusement pas pu être traduit à temps pour notre présentation aujourd'hui. Néanmoins, vous noterez que pour chacune des propositions dont nous voulons vous entretenir, nous avons jugé opportun de vous référer aux pages pertinentes de notre publication bilingue, Un Canada à redéfinir, document qui élabore la position constitutionnelle de la communauté franco-ontarienne et dont vous avez déjà reçu copie. Ces références peuvent en fait apporter des précisions quant au cadre et à la signification de certains concepts employés ou peuvent être utilisés en guise de lecture complémentaire.

Vous noterez également que ce texte est présenté en trois colonnes. La colonne de gauche reproduit le texte intégral de la proposition fédérale qui nous intéresse ; la colonne médiane contient des modifications qui, à notre avis, devraient être apportées à la proposition fédérale, alors que la colonne de droite comprend les éléments qui devraient y être ajoutés.

Je vous demanderais à ce moment-ci de prendre le document en question et je pourrais peut-être passer quelques commentaires au sujet de ce document. Je donnerai le numéro de la page afin qu'on puisse, ensemble, passer à travers assez rapidement.

1920

Pour ce qui est de la proposition fédérale numéro 2, à savoir la «reconnaissance du caractère distinct du Québec et de la dualité linguistique du Canada», nous suggérons d'apporter, premièrement, une modification à l'item (b). Si vous remarquez à la gauche, le gouvernement fédéral ne parle que de la «protection». Dans notre modification, nous parlons de la préservation et la promotion. En plus, plutôt que de parler des «Canadiens d'expression française», nous parlons de «communautés d'expression et de culture françaises». Nous aimerions que cette dimension soit ajoutée. De même, pour ce qui est, dans la deuxième partie, de «Canadiens d'expression anglaise», ici nous parlons de «communautés d'expression et de culture anglaises».

Alors, voici pour ce qui est de la modification. Nous croyons qu'il est essentiel, puisque nous parlons de la dualité linguistique, et la dualité linguistique étant un principe fondamental canadien, que l'Ontario nous appuie en demandant au fédéral d'ajouter différents items que nous énonçons ici, à savoir (c), (d), (e), (f), (g), (h) et (i).

Ici on parle des pages 1 et 2. Nous réitérerons à (c) que «la province de l'Ontario adhère aux articles 16 à 22 de la Charte canadienne des droits et libertés».

Pour ce qui est de l'item (d), nous suggérons une possibilité de bonifier l'article 23.

Nous suggérons qu'à cette proposition numéro 2 du gouvernement fédéral soit ajouté, à l'article 19, «le droit d'être compris» en français «par les juges», ou en anglais, dépendant de la province dans laquelle nous nous trouvons.

L'item (f) s'agit simplement d'un bref changement à l'article 20, d'une suggestion. Pour ce qui est de (f), si vous remarquez l'article 20, nous allons à (a), où on parle de «l'emploi du français ou de l'anglais» qui «fait l'objet d'une demande suffisante». Dans le texte de la Charte qui existe présentement, c'est le mot «importante», alors c'est le changement du mot «importante» pour que ça devienne «suffisante».

Nous demandons aussi qu'à cette clause, la «reconnaissance du caractère distinct du Québec et de la dualité linguistique du Canada», on ajoute la dimension des organismes parapublics, notamment les hôpitaux et les universités et ainsi de suite.

Si vous me permettez, nous allons passer à la proposition numéro 7 à la page 3.

La clause Canada dans la constitution : J'aimerais vous rapporter à cette modification que nous demandons et la modification, par exemple, «l'attachement des Canadiens aux principes d'équité», et ainsi de suite. Ce n'est pas compliqué. Nous demandons, dans la colonne médiane, d'ajouter «ou leur langue».

Pour ce qui est de l'item numéro 2 sur cette page mais qui correspond à l'item numéro 5 dans la clause Canada, à savoir «la reconnaissance de la responsabilité des gouvernements de préserver les deux majorités et minorités linguistiques du Canada», nous suggérons de le changer et d'indiquer : «l'obligation des gouvernements de préserver, protéger et promouvoir la culture et les droits linguistiques de chacune des communautés de langue officielle du Canada».

À l'item numéro 10 de la clause Canada dans la constitution, peut-être que mon confrère ici voudrait commenter.

M. LeBouthillier : On y parle tout simplement du respect des droits individuels et collectifs tels qu'énoncés dans la Charte canadienne des droits et libertés. En vue du projet de charte sociale proposée par le gouvernement ontarien, évidemment, s'il y a une telle charte, ça devrait être ajouté. Si on respecte la Charte canadienne, il faudrait également respecter la charte sociale, sur laquelle l'ACFO réfléchit actuellement.

M. Tanguay : Si on passe maintenant à la page 4, aussitôt que j'aurai fini, si on peut entretenir des questions à ce moment-là, il nous fera plaisir d'y répondre.

Pour ce qui est de la question du Sénat, j'aimerais peut-être résumer en disant que de façon générale, nous nous entendons avec les différents éléments proposés par le gouvernement fédéral, mais dans notre suggestion de modification nous suggérons d'intégrer les propositions numéro 9, 10 et 11. Alors, à vous ensuite de poser des questions sur nos recommandations en fonction de notre proposition à l'égard du Sénat.

Je vous demande à ce moment-ci de passer à la page 9. Pour ce qui est des nominations à la Cour suprême du Canada, j'aimerais tout simplement vous faire remarquer que nous réitérons notre position que nous avons déjà mentionnée, à savoir «la Cour suprême du Canada doit compter un minimum de quatre (4) femmes» ; que trois juges proviennent du Québec, et «que les juges nommés à la Cour suprême du Canada soient aptes à entendre toute cause dans les deux langues officielles, et ce dès leur nomination».

Si on passe maintenant à la page 10, pour ce qui est de la recommandation numéro 22, à savoir le pouvoir résiduel. Vous pourrez questionner à ce moment-là. Dans les quelques instants qui nous restent, peut-être qu'un de mes deux confrères ici pourrait renchérir.

En terminant, j'aimerais peut-être dire deux mots sur la délégation des pouvoirs législatifs. Cette délégation de pouvoirs étant un élément très important, nous suggérons au gouvernement de l'Ontario d'appuyer la position de l'Association canadienne-française de l'Ontario, à savoir que toute délégation de pouvoir soit accompagnée de l'article 20, qui assurerait la garantie de ces pouvoirs vers une province.

Je vous remercie énormément de votre attention. Si vous avez des questions, il nous fera plaisir d'entretenir avec vous certaines réponses.

Le Président suppléant (M. Winninger) : Je vous remercie pour votre présentation, qui était très intéressante. Je crois qu'il y a des questions. On peut commencer avec Mme O'Neill.

1930

Mrs Y. O'Neill: I want to begin, M. Tanguay, by putting in the record of Hansard your participation on the panel at our conference. I congratulated you that night and found there was was a lot of hard work and very solid thinking presented to us that night and I see it continued again. You people were all working very hard on all these issues, and I thank you for that.

I would like to ask some questions that you did not really touch on but are subject matter you touched on. We were in Quebec last week and we were very careful to listen, with our ears right on the ground, to everything that we were hearing about the distinct society. I do not at this moment want to comment on what we heard there, because I do not think it would be in the proper context.

Do you find the distinct society now in this set of proposals, as opposed to what had happened to this point in the accord of 1990? Do you see a difference? Is this more comfortable? Would you comment about the difference you see between 1990 and what we have in 1991 regarding that clause.

M. Tanguay : M. Gilbert, having participated very actively -- il pourrait peut-être commencer.

M. Gilbert : Il y a une différence, effectivement. En 1990, la proposition ne parlait pas de promotion, et pour nous la promotion est excessivement importante. C'est pour cela que nous parlons actuellement. Là je ne sais pas si vous voulez avoir un commentaire sur la proposition fédérale, qui parle de la société distincte, ou de notre proposition.

Pour nous il est excessivement important non seulement d'obtenir des droits comme Canadiens, comme Ontariens, mais également d'avoir des outils pour exercer ces droits. C'est pour cela que pour nous actuellement en Ontario, une société distincte ne pourra pas être distincte si la reconnaissance du français n'est pas préservée, n'est pas protégée et n'est pas promue. C'est là la distinction, je pense, avec la proposition antérieure. Il y a peut-être d'autres commentaires.

M. Tanguay : Peut-être juste un demi-commentaire.

Si je comprends bien, avant même que les propositions soient présentées par le fédéral, M. Clark, dans une élocution qu'il a présentée, avait garanti à la communauté francophone vivant à l'extérieur du Québec que la dimension «promotion» serait dans les propositions. Pour une raison que nous ne comprenons pas jusqu'à ce jour, l'expression «promotion» a été éliminée. Nous considérons que, pour développer un Canada que nous on considère étant une vision de ce Canada qu'on recherche tous, il faut absolument que cette dualité linguistique soit garantie et que cette garantie se réalisera alors que «promotion, protection et préservation» soient inclus dans le texte.

M. LeBouthillier : Je vous remercie pour votre question, Mme O'Neill, parce que je crois que vous touchez vraiment au coeur du sujet.

Il y a deux façons d'aborder : ce qui à trait au Québec et ce qui a trait à la dualité linguistique. Dans l'accord du Lac Meech, il y a avait une disposition générale qui touchait à l'ensemble de la constitution, et on voit ici qu'il y a quand même une référence, dans la clause Canada, à la société distincte. En ce qui à trait au Québec, on fait ici une référence à la société distincte dans la Charte et on définit également, une société distincte, bien qu'on utilise le terme «notamment», ce qui veut dire que ce n'est pas exhaustif.

En ce qui a trait à la Charte, il est bien certain que pour le Québec on va prendre en considération la société distincte. En ce qui a trait à la constitution, ça va dépendre de l'importance qu'on va attacher à la clause Canada, si c'est vraiment une disposition qui va aider à interpréter la constitution.

En ce qui nous touche, la dualité linguistique, sur le deuxième morceau, nous notons le même type de langage mais l'absence du terme «promotion» qu'on retrouve dans la «société distincte» et qu'on retrouve aussi dans le «patrimoine multiculturel» à l'article 27 de la Charte, où on fait référence au terme «promotion». On peut se demander pourquoi cette absence? Quand on parle du juge Dickson, de l'affaire Mahé, un juge très respecté dans l'histoire du Canada, on dit que c'est l'un des grands juges qu'on avaient à la Cour suprême du Canada. Son héritage qu'il a laissé pour la dualité linguistique avant de se retirer, à l'affaire Mahé il disait que l'article 23, les dispositions linguistiques au Canada, «vise à maintenir les deux langues officielles du Canada ainsi que les cultures qu'elles représentent et à favoriser l'épanouissement de chacune de ces langues». Il ajoutait plus tard que c'est «préserver et promouvoir la langue et la culture». Dickson n'avait pas d'hésitation à utiliser le terme «promouvoir».

Il y a deux semaines à Montréal, Kim Campbell disait que «la constitution canadienne, notamment les garanties linguistiques prévues par la Charte canadienne des droits et libertés, traduisent les victoires que les groupes linguistiques ont remportées de haute lutte. En effet, ces garanties constituent le fondement de la promotion des droits linguistiques.»

On a le juge Dickson, on a Kim Campbell. Je peux vous citer des gens et des documents historiques -- on en a plusieurs -- qui utilisent le terme «promotion». Pourtant, on ne le retrouve pas ici, et cet article va servir à interpréter les dispositions de la Charte qui existe.

Je pose la question, pourquoi promotion ? Pourquoi promotion du patrimoine multiculturel ? Pourquoi promotion de la société distincte ? Pourquoi promotion de n'importe quoi ? C'est probablement pour sécuriser un groupe, pour permettre à ce groupe de se développer. Ici on voit un groupe duquel on dit constamment qu'il y a de l'assimilation, etc, et pourtant ce groupe-là n'a pas le droit à cette promotion dont on nous parle de façon générale.

On va nous dire peut-être que ça va l'inclure implicitement. On va créer de l'incertitude, on va nous forcer d'aller de nouveau devant les tribunaux pour dix ans, pour peut-être se faire dire que parce que ce n'était pas l'article 25 implicitement, nous ne l'avons pas.

Moi, je peux lancer un défi. Si ce comité-ci veut faire quelque chose de constructive, c'est de refaire cette clause, peut-être pas de la même façon, mais qu'on nous parle d'épanouissement, qu'on nous rassure qu'on n'est pas ici pour conserver un statu quo qui n'est pas satisfaisant.

Pour les communautés francophones, que ce soit de l'Ontario ou de partout, c'est vraiment ici où vous touchez. Je crois que l'aspect le plus important, c'est qu'on nous nie la promotion. Je crois que le Canada, dans ce monde troublé comme on l'a vu hier en Belgique, devrait être un exemple de tolérance. On dit toujours que le Canada c'est un exemple de tolérance. Je crois que la tolérance passe par le développement de nos valeurs fondamentales : pas protéger ce qui existe déjà, mais développer. Je ne veux pas continuer, mais je trouve que c'est là l'aspect le plus important et je crois qu'il y a plein de précédents juridiques qui démontrent l'urgence de ce document.

Mrs Y. O'Neill: And we heard it in New Brunswick.

The way it is written now was compared to "pickling," if you can get that. This is a francophone who said she sees it as a preserving, not a promoting. We all had a good laugh on that one, because we would not have thought of that kind of simile.

I will pass because I have so many questions.

The Acting Speaker (Mr Winninger): Are there any other questions? Hearing none, I would like to thank you all for coming today and sharing your views with us, and I too would like to thank M. Gilbert for his contribution to the constitutional conference. I sat beside him at the workshop on the Charter of Rights, and his contribution was indeed very powerful. Thank you all for coming tonight.

M. Tanguay: Merci beaucoup. J'aimerais aussi vous remettre nos commentaires à l'égard de notre participation à la conférence constitutionnelle. Nous avions promis à votre comité un document spécial et nous l'avons ce soir.

Mrs Y. O'Neill: You are ahead of us, Jean.

1940

ONTARIO TEACHERS' FEDERATION

The Acting Chair (Mr Winninger): I will call on the Ontario Teachers' Federation. I understand that we have with us today Ruth Baumann, Margaret Wilson and Ron Poste. We have your written presentation and we look forward to hearing your oral presentation as well now.

Mr Poste: You and the members of the committee can relax. I do not intend to read this to you but I hope I can make a few comments around it that will help bring everything into context.

The teachers of Ontario have a major interest in what is going to happen to Canada and its current unity discussions. Within the Ontario Teachers' Federation we spent considerable time at a meeting that involved representatives of our five affiliates and also the members of the executive, which represents all five affiliates. This was also a major point of discussion at the recent meeting of the Canadian Teachers' Federation. It might be of interest to the members of this committee to know that the Canadian Teachers' Federation is devoting two days in December to a continuation of the discussion of Canadian unity. Hopefully that kind of context will give the members of the committee an idea of the importance we place on this issue.

Eight points form the foundation for our presentation. A little later on we will be going through them and you will have the opportunity to read our thoughts on each of the points raised in the federal discussion paper, but I think it is important that we state these fundamental principles at the beginning.

We believe in a federal system for Canada and a sovereign, strong and united Canada.

We believe Quebec should be recognized as a distinct society within Canada.

We believe there needs to be a change and that the inherent right of aboriginal self-government should be a major concept in whatever happens for the future of Canada.

We believe the affirmation, protection and promotion of minority language rights.

Some of us are not convinced that there needs to be a Senate, but if the conclusion is that there has to be a Senate, then we think that the Senate needs to be the subject of major reform so that it, at the least, recognizes regional interests.

We oppose the guarantee of property rights in the Constitution.

We support the concept of a social charter. It is probably of no surprise to anyone to note that we believe that the shared-cost programs under that should include such social benefits as education, health and child care.

If it meets with the approval of the group, I am going to go through and comment briefly on each of the points that is a part of the federal discussion. Then if there are points of clarity that need to be enhanced a little further, we could perhaps come back to them.

The basic rights and freedoms are supported, but we do not support the guarantee of property rights within the Constitution. One of our major concerns with the whole Constitution and Parliament is that if something gets enshrined in the Constitution, it becomes adjudicable within a court system. We believe the elected representatives of the country do have the right to make decisions, and in some areas the courts, subject to law that is already there, should not have the right to have sole adjudicating power on some of the issues. Hence, you will notice in our brief that we are against the inclusion of some things within the Constitution because it seems to put the courts, rather than elected representatives, in control.

We do not agree with the override provision of the federal proposals.

As indicated in my opening remarks, we believe that Quebec does need to be recognized as a distinct society within the charter.

Points 3 to 6, which start on page 4 of the information you have before you, deal with the aboriginal rights. As I indicated in my opening remarks, it is our thought that the rights of Canada's aboriginal people need to be adequately addressed in the current discussions.

The Canada clause, as it is proposed, presents a bit of a concern to us because we think it needs expansion. From our perspective -- we are education-oriented -- we note that education is missing there and suggest that if the Canada clause is to be appropriately worded, it should cover the right of education to all citizens, to children and youth, and the principle of first call as defined by the United Nations.

There are a few editorial changes we would make on some of the others. It seemed obvious to us that gender seemed to be missing from the list. You can read the major points there.

On page 6, we believe the protection of the rights of the English in Quebec and the rights of the French outside of Quebec is important. Perhaps this one bullet needs to be expanded so that there is no doubt about the opportunity for both of those concepts to be met.

I think the others are fairly editorial.

At the bottom of the page, again because of our interest in education and children, we recommend that consideration be given to an expansion in that particular section.

On page 7, we think the role of the cabinet needs to be very carefully addressed. We as a group have some concerns with the role the cabinet currently seems to be playing. Our suggestions are outlined in the three points on page 7.

At the beginning, I indicated that we as a group are not convinced that we need to have a Senate. If we do have a Senate, it needs, in our minds, to be reformed in a major way. Our points of consideration for that are outlined on page 8.

We took a look at the appointments to the Supreme Court of Canada. In our opinion, as you can see from our comment on page 10, we believe the new concept proposed is more acceptable than the present practice.

The constitutional amending formula gives us a bit of concern. We do not believe any one province or territory should have the right to veto social programs. If we are going to be a united Canada, then we need to behave as Canadians without individual rights entrenched within any one province.

The education of students falls into our mandate. We really believe that if we are to be doing the right thing for children moving into a Canada of the future, the need to be educated in both languages is primary.

Section 15 gave us some concern. It is listed on page 12. It seemed to contradict section 121, but in our discussions we were wondering whether the way this is set out at this time is not more an impediment to the discussion of unity than it is helpful. While we are not experts in constitutional law, it seemed to us in our discussions that this could be a topic that might very well be set on the back burner. It needs to be discussed, but whether it needs to be discussed in the current context is not clear in our minds.

We have some concerns with the power of the federal government, the power it currently has or might want to take unto itself. You will note, in section 16, that we have a major concern with that. We are reluctant to give this kind of power to the federal government and we think it more appropriately should reside within the provinces and the territories of this country.

1950

In section 18, for training, we believe there needs to be a national agenda for education. The federal government does have responsibilities. The most recent Environics poll, which I have not read yet -- it was reported to me tonight and I will certainly get a chance to see it tomorrow -- indicates that the federal government should have a major role in the area of national training and retraining.

Immigration is a concern for education, because in many cases we are the people who need to provide English- or French-as-second-language training. Right now there seems to be no way to keep an immigrant to Canada in a specific province. The province where people choose to reside is saddled with the problem of providing the language training that is so necessary to function in our society. We believe the federal government must take responsibility for this on a national level because there is no way to hold people within provincial boundaries.

The whole area of culture gives us some concern as we look at the proposal. As we have indicated here, we do not believe this particular domain should be shifted from the federal government to the provinces without the protection of vested rights, particularly those of the minorities.

We believe in a national broadcasting system. We believe that as a united Canada people anywhere in this country deserve to have the national broadcasting system providing programming in both official languages and we believe the responsibility for funding that is a responsibility of the federal government.

When we talked about residual powers, we very quickly got into a bit of quicksand in our discussion. As we tried to wrestle through it, we were not clear on exactly what the federal proposal was, so we are open on that and are trying to find more information in that particular area.

We are very much against the proposal on the federal declaratory power. Medicare was established under this particular section, and there is no doubt in our minds as Canadians that medicare is a benefit we have in this country that puts us ahead of many other areas. Without that federal declaratory power, one could argue whether we would actually have the medicare system we have right now. You will see in section 27 that we tend to reiterate our concern and we take it far enough that not even the majority should have the right to intercede in this particular area.

One of the concepts that kept coming up in our discussion was whether we are currently being overgoverned. We did not have an answer to that, but when we took a look at 28, it certainly looked like another level of government being imposed. If one can conclude that there might be some support for the fact that we are overgoverned at the present time, then it does not take a lot of projection to see why we are opposed to the seeming addition of yet another level of intermediary decision-making processes.

That covers the essence of our brief. As I indicated, we are not constitutional experts, but we have given some time to it and will be spending more time on it. We are committed to Canada as a nation and certainly are willing to participate in all things that we can do to make sure that is our future down the road.

The Acting Chair (Mr Winninger): Thank you for your thorough presentation and for moving forward with such a sense of confidence and assurance.

This is not the first time it has been suggested that we are overgoverned. I recall a delegation in Hamilton that suggested the same and that we might start by eliminating the provincial government.

Mr Poste: I was not quite that bold.

The Acting Chair (Mr Winninger): I am sure your paper will provoke some questions.

Mrs Y. O'Neill: A lot of questions. I am interested in a couple of things, particularly if I may go to page 6 for a second. You did not comment on the free flow of people, goods, services and capital. I do not know whether you were tying that into interprovincial migration on page 14. Have you talked about that with the Canadian Teachers' Federation? It is certainly of interest in most of the other provinces and, as you know, the Maritimes are doing quite a bit on it. Has there been any discussion about this kind of thing, because teachers' qualifications and all that stuff is pretty significant, of course.

Mr Poste: There are a couple of answers here. As I indicated, the Canadian Teachers' Federation is spending two days in December looking at this. The only thing we were able to conclude at our discussions a week ago was basically support for the points you have on the first page, and some of those still have some debate going. At the Canadian Teachers' Federation level, this specific bullet I do not believe was discussed in depth, but we do have some points we would relate to, and teacher qualifications is one. Perhaps I could ask Margaret to expand on that.

Ms Wilson: The Ontario Teachers' Federation has been supportive over the last 10 years of movement of teachers within Canada. It has not always been easy. There was a point about eight years ago when Ontario allowed teachers to come in without restriction and get an Ontario teaching certificate, while only two provinces would take our teachers. OTF co-operated with the ministry in developing a series of reciprocal agreements. We now have reciprocal agreements with eight other provinces and would like to have them with all Canadian provinces. In other words, Ontario was supportive of the idea of teachers being able to move, but not everybody else was.

Mrs Y. O'Neill: Thank you, Margaret. I was also interested in the recommendation on page 10 that all children should be educated. I was really quite surprised and pleased and would like you to tell me how you came to that. I find it a very strong recommendation. It may not be even totally possible, if I take the word "all" to mean what most of us think is all. There seem to be exceptions in most boards, even in the city I come from, which has very strong immersion programs. Do you want to comment on that for us, please?

Mr Poste: We are supportive of the free flow of people within this country. This country has two official languages and if in fact the children of the future Canada are going to be able to move freely from province to province, then we think education in both official languages is essential.

Mrs Y. O'Neill: So you are suggesting offering it and not making it mandatory for students. This is kind of a key point from a teacher perspective.

Mr Poste: I do not know. I guess we are like you, we have been through the same type of questioning of the introduction of two language programs in education. I would have to say I am responding personally now: I do not know whether it would need to be legislated or offered. Perhaps my colleagues on either side have comments.

Ms Wilson: You have two problems. The sense I picked up at the executive, and at the committee looking at this prior to the executive, was that, in an ideal world, people would like to mandate at least some early exposure to both languages, recognizing that while not all children would have the capacity to develop fluency, many more would, and presently do, when they have even limited exposure.

The reality is that in English-speaking Canada right now we have serious difficulties in staffing the existing French-language programs. I understand it is not always that easy in Quebec to get qualified teachers for the English-language programs, although they are more limited than some of ours in French. One must always be able to deliver an ambition, I think. On this particular recommendation, we strongly believe that it is what we should be moving towards. But I would hate us to be mandating programs before we have the capacity to deliver them. We have been quite good at that in the past in other areas.

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Mrs Y. O'Neill: Thank you, Margaret. I will pass, Mr Chairman.

The Acting Chair (Mr Winninger): Ms Harrington, and then Ms Carter.

Ms Harrington: It is an excellent brief you have put together, very clear. But maybe that is a prejudice of some of us on this committee who are former teachers. We appreciate what you have done, especially the amount of study you have put into this in bringing your five affiliates together, and the further study you are going to be doing on it. I want to comment on a couple of items.

First, I found it interesting that you noted there should be more emphasis on the role of the cabinet in a parliamentary system and that the OTF believes the cabinet must have more flexibility. I am wondering, as we also at the provincial level have a cabinet, if you could explain what your suggestions might be.

Second, on page 8, you talk about Senate reform and whether there should be a Senate. We have heard a lot of delegations, and there is a fairly strong feeling that the Senate would serve some useful purpose if it were an effective Senate. I wanted you to possibly clarify your fourth point on page 8, "The OTF suggests that the government look at regional representation rather than provincial," and what you mean by that.

Ms Wilson: Let me start by saying that it was not easy to get everybody together for this. I was present for a couple more of the meetings than either Ruth or Ron, so I will have a crack at this.

It was the fairly strongly held opinion of the first committee we had work on this -- they came from all of the affiliates -- that we have been drifting towards a presidential Prime Minister, and that the cabinet, as a working cabinet, had become almost invisible to Canadians, outside of a couple of high-profile ministers, and that this is inconsistent with parliamentary government, because the checks and balances required in a presidential system do no exist in ours.

We felt we might be in less trouble generally if so much of the focus of the debate had not fallen on one individual. Regardless of who the Prime Minister is, in a parliamentary government the cabinet members themselves should have the flexibility occasionally to state their personal opinions. I have been trying to remember when the last one did in Ottawa. I do remember when I was a young teacher that occasionally cabinet ministers disagreed. Sometimes they resigned, but they did not leave Parliament. They were still there. They got into trouble arguing over the armed forces and what kind of uniforms they would have and so on.

It is just that everything seems to have become solidified around one crystal statue. We like the system we have. We would like to get back to what it is supposed to be, where cabinet members have responsibilities as cabinet members, as well as a cabinet. I guess we are not enthralled with cabinet solidarity as the only way of thinking.

On regional representation in the Senate, we can understand some of the proposals coming from western Canada. This is not unrelated to our second point on page 8, about taxation and representation. The American Revolution was fought over no taxation without representation. We do understand that the proposal for the Senate would not allow it to control the Commons. At the same time it would have influence, and it could delay.

A Senate that has equal representation from each province in our view moves too far away from the basic principle of representation by population. It might be possible to conceive of regions in Canada represented in the Senate, if we have to have a Senate, to bring representation closer to representation by population, as opposed to Prince Edward Island having the same number of votes in the Senate as Ontario, which would be the most extreme. Well, I guess if the Yukon had votes, it would be more extreme.

Ms Harrington: So what you are proposing is, say, the Atlantic provinces and the western provinces have some kind of regional representation by population in the Senate?

Ms Wilson: Yes. That would be at least one other way of looking at it and I think it has been on the table in previous discussions. I do not know that anyone ever looked at it long enough to see whether it would work.

Ms Carter: Thank you for your very thorough presentation with well-thought-out and, it seems to me, sound conclusions.

I am rather intrigued by what is not there under sections 15 and 16 on pages 12 and 13. You say it is not useful to debate the economic union issue at the present time and then, under section 16, that you believe the section should be struck. I just wondered if you had more to say about that.

Ms Baumann: These two sections are the ones where our comments are very terse. I do not think they fairly reflect the concern we have about the current state of the economy in the province or in the country. If I go back to the comments Ron and Margaret made earlier, I think there was a strong feeling that the proposals under section 16 particularly, when you look at the provincial budget processes and so on, suggest discussions that would be obstructive rather than productive to have right now.

While we would very much like to see discussion about how to make both the Canadian and the Ontario economies function better, we are not sure that constitutional changes are really at the heart of those issues at the moment. Taking into account what we said earlier about the free flow of people and goods and services and mobility and so on, and that we do support those things, we think it would make more sense to get on with what goes into the Constitution and then get on with the question of how we handle the economy.

Ms Carter: So you think that this would provide a block in succeeding, in getting this stage of things over?

Ms Baumann: The strong sense of a number of our people as we discussed these was that they were impediments to discussion at the moment, rather than things that enhanced it.

Ms Carter: You do not see a danger of loss of democratic control in some of these areas?

Ms Baumann: I think that is probably why some of our people felt that they were impedimental, that we were into a discussion about who could do what, and whether somebody was trying to take away powers, and that was going to sidetrack a discussion about the state of the economy or the basic agreements that we now have.

Ms Carter: So you see that as contentious, and therefore that is a reason why it should be deferred?

Ms Baumann: Yes.

The Acting Chair (Mr Winninger): Was there something you wanted to add on that last issue of Senate reform?

Ms Baumann: When we first discussed the question of regional rather than provincial representation, I think one of the feelings was that in a reformed Senate, which we would hope would be a more effective Senate, it would probably be more productive to general decision-making for the country if representation were regional rather than provincial, so that the people who were there saw themselves as being responsible for something more than a province in their representation in such a Senate.

The Acting Chair (Mr Winninger): Unfortunately we have run out of time, but I would like to thank you again for coming and sharing your views with us tonight. We will study your paper with interest. Thank you.

With apologies to the next deputation, we only have one interpreter with us tonight, so for his benefit and ours we are going to ask if you can wait five minutes while we break.

The committee recessed at 2008.

2016

URBAN ALLIANCE ON RACE RELATIONS

The Acting Chair (Mr Winninger): I would like to welcome the Urban Alliance on Race Relations here today. Perhaps you could introduce yourselves before you begin your presentation. I take this opportunity to remind you that we have allotted half an hour for each presentation.

Mr Dharmalingam: My name is Dharmalingam. I am the president of the Urban Alliance on Race Relations. I have with me Charlotte Chiba, one of the board members; Wilson Head, our past president, and Jim Putt, vice-president of the organization. Our brief is fairly small. I want to read it to you. Perhaps after that we will have the opportunity to ask some questions.

The Urban Alliance on Race Relations is pleased and honoured to have been given this opportunity to dialogue about the Constitution with the select committee on Ontario in Confederation. However, it cannot be assumed that we are currently in a position to respond adequately to the federal government's proposals, for the following reasons: (1) We have little knowledge or background information about the issues behind the proposals and (2) we were not given enough time to become informed.

A brief note about what the organization is all about: The Urban Alliance on Race Relations was founded in 1975 by a group of Toronto citizens who were and are concerned about adverse discrimination. Our primary goal is to promote a stable and healthy multiracial environment in Metropolitan Toronto. The original focus was at the school and community level to raise consciousness about the problems surrounding racial disharmony. Currently our activities are focused in the following areas: the justice system, employment equity, education, media and publishing a quarterly magazine called Currents. We hope that through our efforts we can educate the private and public sectors about the reality of racism and work together with them to implement change.

The constitutional consultation process: Constitutional reform is an extremely important responsibility and probably the most critical act of citizenship a Canadian can assume. The federal government's proposals reflect the diverse issues which have arisen in this round of constitutional reform. If adopted, these reforms will affect each and every Canadian for generations to come.

We believe the fundamental problem underlying the present constitutional debate is public ignorance with respect to the constitutional process. The only difference between this constitutional amendment and the failed Meech Lake accord, where there was little or no public consultation process, is the fact that here we have the appearance of a public consultation exercise.

We are concerned about the manner in which the federal government has sought public opinion on its proposed constitutional changes, because we believe Canadians still lack the knowledge necessary to contribute to the process intelligently and responsibly. We are unequivocal in our belief that more time is needed for dialogue among all sectors of Canadian society about the Constitution.

The Constitution: The Constitution is a written and symbolic expression of our Canadian identity. It is the deed that draws us together amidst our diversity. Whether Canadian citizens, new immigrants or visitors from another country, individuals turn to the Constitution to learn what it means to be a Canadian. The role the Canadian Constitution plays in our daily lives cannot be overemphasized. It is of fundamental importance that any amendments to the Constitution must involve all Canadians and reflect values and principles each of us can share and uphold.

Shared citizenship and diversity: The "notwithstanding" clause: It is our opinion that the proposal that the number of votes necessary for Parliament or a provincial Legislature to invoke the charter override, section 33, not be changed from a simple majority to 60% but instead be abolished in order to guarantee that the rights outlined in section 2 and sections 7 to 15 are entrenched. If this is not possible, we propose that the Constitution be amended to include section 2 and sections 7 to 15 and that these sections should replace the proposed Canada clause.

Social charter: We affirm the concept of a social charter as proposed by Premier Bob Rae. In particular, we affirm the philosophy of the following section of the social charter:

"The health care, education and social welfare services were viewed by many witnesses as significant achievements of which Canadians should be proud. It was the great value of these achievements and the importance with which they are viewed which underlay the many calls to ensure that any reorganization of federal-provincial relations should not endanger social programs.

"Broad acceptance of the fact that a fundamental restructuring of federal-provincial powers was both necessary and inevitable was evident in many of the presentations we heard. Given this, the primary concern of most witnesses was to ensure the federal government retained sufficient powers to maintain national unity, to ensure national standards for social programs and to perform truly national functions, which included national institutions."

The universality of these particular programs is fundamental to Canadian citizenship.

Canada's distinct societies: We acknowledge that both francophone people and aboriginal people should be recognized as distinct societies in terms of language and culture. In addition, we believe that aboriginal people should have immediate recognition of their right to self-government.

Canada clause: While the Canada clause is comprehensive, the wording of the clause is redundant because the same principles are already inculcated in the Charter of Rights and Freedoms.

Responsive institutions for a modern Canada: Parliamentary reform: We support the introduction of further parliamentary reform to allow for greater participation in the democratic process. The reform should include (1) House of Commons, (2) Senate -- all representatives to be elected -- and (3) reduction of the power of the Prime Minister. We also urge the federal government to look at other parliamentary models to ascertain whether there is anything which could be adopted to ensure that the reform is fair to all Canadians.

Preparing for a more prosperous future: Broadening the common market clause: There should be a constitutional amendment to ensure free trade among all Canadian provinces and territories. The reforms should cover the free flow among all provinces and territories of capital, goods, services and people.

Conclusion: Currently, Canadians find themselves at a historical turning point. Our constitutional Confederation is no longer what it was in 1867 or 1982. Although our values and principles, such as justice, fair play, tolerance and freedom, remain as a basis upon which Canadian democracy continues to flourish, these values and principles now embrace much more. They include the concept of equality, a public recognition of our cultural and regional pluralism, the recognition and respect owed to aboriginal peoples of Canada as its first inhabitants, an acceptance of them along with Quebec as culturally and linguistically distinct societies, the concurrent individual and collective nature inherent in Canadian citizenship and a greater awareness of Canada as a member state in the global community.

Mr Malkowski: Thank you very much. It was a very good discussion, but I would like you to clarify on section 33. You want section 33 removed and replaced with what section -- did you say 17 -- or with what proposals in the Canada clause? Could you explain and explain why you think that?

Mr Dharmalingam: I am going to ask Charlotte to respond to the question.

Ms Chiba: I think what was meant here was that the section 33 override is something that we understand may on occasion -- for example, the Quebec government has used the section 33 override clause to ensure its linguistically distinct character. However, we want to ensure section 33 is not used arbitrarily. Therefore, the sections that are presently subjected to a 33 "notwithstanding" override -- namely, section 2 and sections 7 to 15 -- ought perhaps to be reviewed to see whether all of them should be subjected to the section 33 override. We were thinking specifically of section 2, which is the liberty clause and also sections 11 and 15. I think that is it so far. You can see that we did not go into great detail in this because we are not that schooled in the particular arguments, legal arguments at least, that might be involved in this.

Mr Malkowski: Okay, but your point is that you would like to see protection for minority rights, correct? Basically that is what you are asking?

Ms Chiba: There is a difficulty here. The Charter of Rights historically, as I understand it, was a charter that special interest groups seemed to have had a great deal of involvement in. It says very little. I think the charter cases show that there is very little involvement of individuals per se. Therefore, the charter rights are in fact guarantees of group rights and have very little to do, in some instances, with individuals. That kind of question is difficult to answer because on the one hand the charter cases seem to protect group rights as opposed to an individual having access to the courts to protect individual interests.

Mrs Y. O'Neill: I want to go back to page 1. I am not saying you are dishonest, but I hope you will speak as much from your heart as you can on this one. We had a series of hearings, as you know, in this committee that began last January and ended around March 1. If you remember, this room used to be very full of people, and I think televisions were on in many people's homes. As we have worked -- now we are into our 12th month, really -- we have found that certainly this room is not as full. Certainly our hearings are not as concentrated.

I am just wondering, when you say it should go on longer and there has not been a way defined to involve people -- I presume you are talking also, if not more, about the federal proposals and how they are being handled -- do you really think the people you meet are going to continue to want to be involved in the actual formulation of the Constitution? I notice the media now are beginning to take up the concept that the politicians have tried to consult and it is time they really did something here. We have had what we consider quite a successful constitutional conference. We have done close to, I would say, 1,000 hearings. We have likely received 4,000 briefs. What more? I guess that is what I am asking. Am I reading the mood correctly out there or am I not reading the mood correctly?

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Mr Head: I think there is something in what you are saying. I think you are reading the mood, at least in part, correctly. But I think that many people are not aware of this kind of thing. I do not think that we were fully aware of it ourselves, as a matter of fact, and so in a sense we did not get around to looking at this thing until the last few months, so we have not had time for adequate discussion among ourselves.

But I also feel, as you suggest, that there are a number of people out there saying: "Look, this has been going on long enough. Let's get around to making a decision." On the other hand, as I understand it, the government is committed to consultation. I do not know what the limits are on the consultation, but at least that seems to be the way the government is operating at this point.

I look at the question of employment equity and I understand the same kind of thing is going to happen there: There will be consultations, although in various parts of the province and in various cities of the province.

I think our problem is touched upon in the brief in the sense that the Canadian public itself is simply not fully aware of these things. Somehow we in the press and the universities and the public school system have not done an adequate job of educating the Ontario public and the Canadian public about the nature of the political system and how it operates. I have talked to people who have no idea how the system operates. They have no idea of what you mean by legislative committee or even the words "all-party committee." So in a sense we are dealing with a problem which is very deep-seated and very greatly in need of correction.

Mrs Y. O'Neill: We hope our committee has done something to help that and we have been given every opportunity to show the Ontario public our work in that every sitting is televised. So we hope we have been part of the solution rather than part of the problem. Government is certainly not simple and, if anything, is more complex than it used to be. I just wanted to feel you out on that.

Ms Harrington: I also wanted to touch on your consultation process concerns here. You have stated that the one fundamental problem underlying the present debate is public ignorance and you have also asked for more time for dialogue among Canadians because it is so important. I certainly would agree that would be healthy. To get young people and everyone in society thinking about what our country means to us would be wonderful. I think most of us in the Legislature have tried to do that when we go back to our ridings, when we get an opportunity to talk, even bring greetings of three minutes to different groups. We try to point out how important the future of Canada is.

But I would like to tell you that it is difficult because people are very concerned about the economy and their jobs. They are saying, "This is our primary concern at the moment." So I would like to bring that forward to you, that I think this is still a time to make decisions. There is a different attitude, I believe, within Ontario anyway, than there was a year and a half ago. I think more people are listening and are trying to search for the importance of this country. I think all across the country people are realizing that within the next year or two, and probably even sooner than that, we will have to come to some conclusions, whether we like it or not. We cannot just keep on going the way it has been. I am just wondering if you had any reaction to that.

Mr Head: I would like to react to that. I think the job you are taking on and the consultations you are doing reflect the failures of the past. I think we are getting more now because of the fear of the country breaking apart. That is a relatively recent fear, I think, in terms of the overall educational system in Canada.

My kids go to school in Canada and they know very little about Canada, particularly in terms of what is really happening. What is the nature of the system under which we live? They learn a lot about the textbook view of the system, which is a very nicely glorified view, but the real meat of what happens in the political spectrum simply does not get told. So in a sense you are working in a situation where you are at a handicap and you are trying to make up for what should have been done long ago. But I would hope that out of this process would come some changes in the educational system, from the first grade on, maybe from kindergarten on up, to talk about the way this system operates and to look at it in a creative way, not just rote learning that we do now, but to say: "What are the problems here? What are the issues here? What are the advantages here? How can we make this a better society?" This requires, I think, teaching children and young adults and adolescents to think about things themselves.

The system has changed a bit since I have been in Canada since 1965, but it has not changed enough, and a lot of what I see today is precisely what I did not like when I came here in 1965 or what I left in the United States when I left there. I learned nothing practically about the real nature of politics in school, and that was in the States, and my children are learning the same thing here.

So, in other words, I am saying you are running with a handicap, and I wish you the very best of luck.

Ms Chiba: Just to extend on that, I am a third-generation Canadian, and I have to say that I do not think I learned enough about Canada when I was growing up, but then those were different times. Being a Japanese Canadian, I am also sure you are familiar with the redress issue. We did not grow up learning about the truth behind the particular government policies at that time, and I think that just goes to show how the evolution of a fairly young country, relative to other countries in the world, is developing now, and that is why we say we are in a transition.

There are many divisive things occurring at this point, regionally, culturally and economically. These are all impinging on the whole identity of being a Canadian, whether you are a new, old or an indifferent Canadian. But let's look, for example, at the Senate. Do people know how the Senate came to be in Canada, that you still have to have a certain amount of property in order to be a Senator, that you, at one point, had to be from a particular culture or religion? These all have historical background, and when you are going to change them, you do not change them in the abstract. They change incrementally, and they have to change with understanding. For those people who are going to be affected -- namely, all of us, because the Constitution speaks to all of us -- it has to mean that each of us has some stake in it.

As Wilson said, perhaps we have operated at a handicap. We are not pointing the blame at any one particular person or party or government. We are simply saying that there seems to be a lack of communication here, and we thought it would be worth while to point that out.

Mr Dharmalingam: I would just like to add a little bit to that, and I would like to refer back to the questions that were addressed by Mrs O'Neill and also by Ms Harrington.

With respect to how the community thinks and how people think, it is a very diverse answer, and I think you have heard some of the answers around the table. I, too, am a first-generation Canadian, and a thoughtful first-generation Canadian is concerned at the lack of information and lack of time to participate in the process. That lack of time and information can probably be laid at the feet of the political process as well as our media. I think it is very unfortunate that our media see their role purely -- and unfortunately, this is perhaps a truism -- as a profit-making exercise to provide information based on how interested they think their mass public is going to be in what they have to talk about. The number of people who are going to comment on this process and who are going to learn from it is minor. There is no question about that. There is a great deal of apathy out there.

Second- and third- and fourth- and many-generation Canadians probably feel that the process has gone on far too long and they have had their minds made up well in advance as to how they saw it. The issue was perhaps much more simply divided between the aboriginal groups and what we do with them and the francophone-anglophone issue.

As for the timing of jobs and a very down economy, I think that is very unfortunate. The timing of the whole constitutional process and revision has unfortunately coincided with a period in which the average Canadian, particularly those 10% or more who are out of work, could really care less about what is going on. But I do not think that should deter any of us from doing what you are doing here, and doing it well and doing it with patience.

The Acting Chair (Mr Winninger): Are there any further questions? Hearing none, I would like to thank you again for your presentation and for coming here tonight to share your views with us. It was most interesting.

Mr Dharmalingam: Thank you very much for the opportunity. I enjoyed it.

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ONTARIO REAL ESTATE ASSOCIATION

The Acting Chair (Mr Winninger): Last, we have with us the Ontario Real Estate Association. I would ask you to come forward, please. I understand we have with us today Mr Edwards, Mr Watkins and Mr Flood. The clerk has circulated your materials among the members of the committee. Whenever you are comfortable to do so, I would ask you to begin.

Mr Edwards: My name is Jamie Edwards and I am vice-president of the Ontario Real Estate Association. On your right is Mr Flood and on your left is Mr Watkins.

The Ontario Real Estate Association represents over 47,000 individual realtors and 48 local boards throughout the province -- we believe the largest single-industry association in Ontario.

This evening I would like to focus on property rights and the Constitution and give you a few reasons why Ontario realtors believe that entrenchment of the right to own and enjoy property is important and beneficial to all Canadians. I also want to share with you a little background on the property rights issue and the role our association and our national body is playing in the property rights debate.

Let me make one point up front. We have nothing to gain personally in this debate. We do not believe that property rights entrenchment will have any direct effect on our incomes or on our ability to earn a living. We are here because we have seen and documented instances of property rights abuse and we believe that our citizens deserve better protection than they have at present.

The right to own and enjoy property goes back to the Magna Carta in England in 1215 and the English Bill of Rights in 1627. It is in the United Nations Universal Declaration on Human Rights, signed by Canada in 1948, and it was part of the Canadian Bill of Rights, signed in 1960.

Property rights were included in the original draft of the Canadian Charter of Rights and Freedoms for 1991 but were dropped from the final document as a result of political manoeuvring. At the time it was thought that the process of amending the charter would be relatively easy and straightforward and all were assured that property rights would be included in the next round of amendments. Mr Trudeau supported it. Mr Broadbent supported property rights for home and family farm owners. Mr Mulroney still supports it.

As we now know, our Constitution and the amending process have proved to be anything but easy to change. The point I want to make here is not political but historical. The inclusion of property rights in the supreme law of this country and many other countries is the norm rather than the exception. It is a right we already thought we had and we always thought we had. It is a right we thought was a fundamental right, like the other rights included in the charter. It is not new, not revolutionary and not threatening.

In the early 1980s the Ontario Real Estate Association commissioned two studies, Lost Ground and Losing Ground, which documented the growing number of intrusions by local, provincial and federal governments on individual rights. We published case studies outlining how the loss of those rights hurt ordinary citizens of Ontario. I have brought a few copies of these studies with me tonight. I would be glad to share them with you.

These document the problems of real people, people who have lost their homes, their savings, their roots and their dignity at the hands of those who use their powers in an arbitrary and capricious manner. That is why entrenchment is important. It gives property owners, and that means not just real estate, protection and recourse from abuse by governments.

Our concerns about the erosion of property rights and the lack of charter protection led us to institute an annual event originally called Private Property Week and today called Ontario Home Week. During that week the Ontario Real Estate Association and its members across the province celebrate the freedom to own real estate and we explain the importance of this right to all citizens of Ontario. I am proud to say that the OREA was among the first to campaign for entrenchment of property rights in Canada.

Today our campaign, which has become national in scope, is being led by the Canadian Real Estate Association in Ottawa. They have done extensive research and analysis on the effects on tenants, women, aboriginal peoples, provincial and municipal governments and other interest groups of including property rights in the Constitution. Copies of their latest submission have been provided to the clerk. It is their conclusion, and one we support, that none of these groups would be disadvantaged by the inclusion of property rights in the Constitution.

We do not believe that property rights entrenchment means the end of rent control. We do not believe it would allow you to turn your land into a garbage dump. And we do not believe it would give land owners the authority to pollute the environment at will. Frankly, we believe those types of comments do not merit serious debate; the sky is not about to fall.

Any entrenchment of property rights in the Constitution would still be subject to section 1 of the charter, which provides that all rights are guaranteed subject to "such reasonable limits, prescribed by law, as are demonstrably justifiable in a free and democratic society." In simple terms that means that governments can still govern and can still enact laws, that society will still come first, and that existing laws will be respected. We believe that including property rights in the Constitution is good for all Canadians, and they agree. An Environics Research public opinion poll released October 15, 1991 indicated that 71% of Canadians and 65% of Ontarians support a constitutional rights amendment on property rights.

In closing, I want to stress that we have no interest in depriving any group or sector in society of any of their rights and freedoms. Mr Chair and committee members, our association believes that you cannot enhance individual rights by taking away the rights of others, but that by enhancing individual rights you enhance the rights of everyone.

I would like to now ask my colleague, Gaylord Watkins, to say a few words. Gaylord is a lawyer with the firm of Watkins and Co in Calgary and is an expert on constitutional law and property rights.

Mr Watkins: It is an honour to be here to talk with you about property rights and our charter. I am the principal author and also the researcher of the document entitled The Flawed Charter, which has been given to your clerk. What I am going to attempt to do this evening, rather informally I hope, is to review a couple of areas for clarification to perhaps give you a better grasp of how property rights would fit into the charter, to speak briefly about some of the implications of having property rights there, and then hopefully to respond, as I am sure Jamie will too, to questions or concerns you may raise, as I am sure you will.

First, I think we need to look upon the absence of property rights as being unusual, indeed perhaps perverse. Property rights are viewed by members of our society generally as something they assume are there already. They see property talked about, they hear about disputes about property. For the most part, of course, those disputes are disputes between private individuals, and they are regulated, reasonably well I would say, by our common law and by statutes that apply to those kinds of questions.

What we are concerned about here, though, is the relationship between government and the individual, between government and the person or party who believes he has some rights that relate to whatever this thing called property may be.

In terms of the charter being incomplete without property rights, we are talking about the continuation of a situation where you as legislators still are supreme, where you continue to have the capacity in law -- not necessarily the inclination, but the capacity -- to pass legislation which would take away property, which would take away rights of use of property, which would limit the uses that people may put their property to, and to do so without necessarily requiring fairness or fair procedures, and to do so without requiring fair or just compensation being paid.

There is some confusion, I think, in this debate over whether there should be property rights in the charter. Property rights in the charter will be no different than any other right in the charter, and I am sure you have had people discuss this with you before. The charter does not create or make absolute any of the rights that it protects.

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Jamie has mentioned to you section 1 and the "reasonable limits" clause there, and I am sure you have been back and forth across that a hundred times, if not more. At the same time, you have had discussions, I am sure, on section 33 and the "notwithstanding" clause, which in essence is the clause that reserves to our legislators and to our parliamentarians the sovereignty to do what you will. In this instance, using section 33, you would have to say specifically what you were doing, that you were in fact passing laws which would not be subject to rights in the charter, and that, notwithstanding the charter, the legislators had determined it was a good thing for society in general to have such a law, even though it may conflict with certain rights protected in the charter.

We also have in section 7 of the charter a recognition of certain rights. Sometimes people have talked about putting property rights into section 7, along with life, liberty and security of the person. Of course, that section as well does not make those rights absolute. Indeed, it says that you can take those rights away, or legislation can take those rights away, provided you do so in accordance with what the drafters of the charter nobly expressed as the principles of fundamental justice. Some lawyers and legal academics are still scratching their heads as to what fundamental justice is. I think I view it as something that would at minimum be equivalent to the rules of fairness or natural justice. There may be something more there; we are not certain.

The realtors' associations across the country, the Ontario Real Estate Association, and the Canadian Real Estate Association, like the federal government, have not at this time determined where exactly property rights would go in the charter. But they have decided that there are two fundamental elements they would like to see protected by the charter.

They would like to make certain that there is fairness in any taking of property rights or limitations on the use of property, so a due process requirement would be part of that. At the same time, if there was a deprivation, there would be just compensation paid. All of that, of course, would still be subject to section 1 and the "reasonable limits" provision, which permits governments to pass laws and legislators to enact legislation which would in effect take away property rights in circumstances where that was demonstrably justifiable and at a reasonable limit, without paying compensation, and indeed without following fair procedure.

So we are not talking about any kind of absolute recognition, of putting property on a different pedestal, or of having it at a higher level of protection. It would be a right just like any other right -- a right, a fundamental right perhaps, called as such, but no more fundamental than the other rights in the charter. Indeed, if it was protected in a section by itself it would take on a character which may, in fact, evolve over time. It may not appear in the future to be a right which just protects real estate as property but may, as I will get to later, protect something more than just real estate or personal property or all the other things that we commonly think of as property.

I am often asked by people: "Why are you worried about property rights? Society seems to be getting along fairly well without having property rights entrenched in the charter." I guess for some people that is so, but for numbers of people, and we think significant numbers, that is not the case. I think the documentation being provided by the Ontario Real Estate Association touches upon and describes in some detail cases where there have been infringements or taking of property for which there has not been compensation. It has not been fair. It has been rather arbitrary. Indeed it will be hard to fathom in these cases that in fact a reasonable limit was involved.

Let me just sketch briefly what we have in terms of existing legal protections of property. I will try to do it briefly because you have been at this for a long time today and I know there are time limits for you. We have certain presumptions that the courts make. We call them the common-law presumptions. They are really principles of interpretation. What they essentially say with respect to property is that the courts would only interpret a statute as taking away property rights without compensation if there was express language to that effect, or if there was no other reasonable interpretation that could be made. Putting it another way, a statute cannot take away property without compensation unless express language to that effect is present.

Those presumptions usually arise when the language of the legislation is ambiguous or when the literal interpretation would lead to an illogical, unreasonable or perverse result. So while we would like to think that it is always something that is going to be applied by the courts, it will not necessarily even be activated unless you, as legislators or the drafters of laws that you have enacted, have not been altogether clear in the language you have used.

We also have certain protections from the procedures by which property is taken, by the rules of natural justice I referred to before and the duty to act fairly, by common-law principles which have evolved in the courts. There we see these principles being applied to ensure that if property is taken, it is done in the way least harmful to the person or parties affected.

That does not apply, though, to quantum. It does not apply to the situation where just compensation is not paid. If that is not provided for in the statute, even though there may be a duty to act fairly, that duty as of yet has not been expanded in terms of interpretation to include the obligation to pay just compensation.

Then of course we have expropriation laws, which many people believe seem to cover the waterfront. In effect, they do not. They only cover those situations where the taker may be bound by the statute to follow the expropriation law, or where the taker has the option or the opportunity to bring himself under the expropriation law so that it does apply. It does not at all preclude the Legislature from passing other laws which take property independently under the Expropriations Act. Your parliamentary sovereignty, your legislative sovereignty is still there. So as far as expropriation laws go, in terms of their procedures, in their ways for determining just compensation, I do not believe this association, or indeed the national association of realtors, really has a problem with that.

So we have these three elements -- expropriation laws, due process and fairness, and doctrines or principles of interpretation -- that attempt to cover the field. But in fact they do not. There are areas where it is still possible for arbitrary laws to be enacted which take property. It is still possible for these things to occur.

What I would like to do now is to make a comparison. I would like to take you briefly to the United States. I would like to talk a bit about the protection of property rights there and the extent to which that has been a burden, if it has been a burden, to the passage in that country of a whole variety of environmental protection laws, matrimonial property laws, heritage protection laws -- all of the laws that some people are concerned might be affected by property rights being entrenched in the charter.

The Acting Chair (Mr Winninger): I should note at this point that we only have 10 minutes left.

Mr Watkins: I see. Did we count the time from the time that we actually began?

The Acting Chair (Mr Winninger): Yes. We started by my reckoning at 20 minutes to 9. It is 9 o'clock now.

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Mr Watkins: I will be brief because I would like to leave some time for questions.

The Acting Chair (Mr Winninger): Certainly. That is up to you.

Mr Watkins: In the United States, as you are probably aware, both the fifth and the 14th amendments to the Constitution protect property rights. Basically they say no person shall be deprived of property without due process of law, nor shall private property be taken without just compensation.

One has to remember that in the United States, in the framing of their Constitution there was recognition -- indeed, this is recognized in the preamble of the Constitution -- that the citizen had certain inalienable rights, rights that were not in effect brought under the Constitution, that remained outside the Constitution as part of the social compact or agreement between the individual citizen and the government to form the state. Included among those inalienable rights were the right to liberty and the right to property.

We have to remember that when we are looking at how the US Constitution is interpreted. The courts there have several kicks at the can. They can have a kick at the can by saying law should not touch property rights, because it is inalienable; it did not get into the Constitution. Or they can say -- second kick -- "Let's look at this from the point of view of the fifth and 14th amendments. Was there due process and is there fair compensation or just compensation being paid? If not, we have a problem." What has occurred -- the law itself would be unconstitutional.

For a number of years, and I would say up until the Roosevelt New Deal period, which, as you recall, would be the 1930s -- we are now talking the middle 1930s in the United States -- some courts, including the US Supreme Court, used this situation to overturn laws which many people saw as being socially beneficial. But once the hurdle was jumped in 1935, there has been no return. Indeed, I have seen only one recent case, and that at a state level in California, where there has been a significant overturning of legislation, whether it is state or federal, using the property rights arguments.

There is a ream of jurisprudence, of cases which have consistently upheld zoning laws, heritage protection laws, many different kinds of legislation and indeed environmental laws, which are much more onerous than we have in this country at any level of government. Yet property rights there have not served to make that an impossible situation.

The odd thing about the US Constitution is that it has no equivalent to our section 1. There is nothing in the US Constitution which says reasonable limits can override guaranteed rights. Yet the courts there, because courts realize that society still has to evolve and still has to govern, have evolved under what they call the police power; doctrines which permit them to say, "If it's for the public good, if it's for public health and it's for safety, then there could be a situation where there would be an erosion of property rights without compensation being paid."

For those people who say to you that property rights have been a problem in the United States because they have precluded remedial legislation, I think the answer to that is, "Name us the case where it has happened in the last 50 years," because it has not.

I want to touch very briefly on one case in California which is similar, actually, to a situation which has occurred in this province. A church had a small recreational property on which it had a summer camp beside a river. Unfortunately, the camp burned down and when the church applied to rebuild, it discovered that since it had purchased the property a conservation authority had in fact determined that the camp was built on a floodplain and that therefore, as there was now a prohibition against building on the floodplain, even though there had not been a flood there for 70 years, the church could not rebuild.

As a result, there was no value left to the property. The court at the state level held that unless they could go back and look at that floodplain restriction and prohibition again, there had been a taking of property, and since it was for the general public good of all people who lived in the river valley, it was equivalent to an expropriation and therefore there should be just compensation paid. In any event, I have probably gone on for too long, but if you have questions, please ask them.

The Acting Chair (Mr Winninger): Before we entertain questions, and I do have at least one person on my list, did Mr Flood wish to add anything very briefly?

Mr Flood: Not at this time.

The Acting Chair (Mr Winninger): So far I have Mr Malkowski on my list, so we will start with him.

Mr Malkowski: We have heard from a lot of people, especially from the disabled community who have some very strong concerns about property rights in the Constitution, the right of access into buildings, per se. Would property rights prohibit access to buildings for disabled people? I would like to get your feedback on that.

Mr Watkins: No, I do not think it would. We have to look at whether people generally view these kinds of access rights as being something which is reasonable in the circumstances. We only have to go to virtually all cities of this country and look at the redesign and reconstruction of sidewalks to permit ramps for wheelchairs virtually at all intersections now to understand that in our society we have come a long way. I think the courts would view that as being a reasonable requirement and a reasonable limit on the rights which might otherwise exist of the operator of a theatre or a restaurant or whatever to control access to his facility.

Mr Malkowski: I would like to follow up on your point. Once property rights are entrenched, could the owners of the property not challenge it in court to say they do not have that requirement? For example, if people want access, are you saying that section 33 could be used to override city bylaws or municipal or provincial bylaws, or what is your sense of that?

Mr Watkins: Right now there are in many municipalities bylaws that you are aware of which require certain access facilities for handicapped people to be built in public buildings. I must say that what has happened actually, in my own experience, is that many builders are in fact exceeding the requirements for these facilities and doing more than they would otherwise need to do according to law.

Your question really relates to a situation where a builder or an operator of such a building did not want to put in these facilities and felt that the zoning requirement might be challengeable under the property rights provision of the charter. I think such a builder would have an uphill battle. He would have to show that the law itself was not a reasonable limit which had been arrived at, which was not demonstrably justified in a free and democratic society. I cannot believe in our society today that any judge would accept that kind of argument.

The builder's lawyer would also have to look at what has happened in other countries where there are property rights entrenched in their constitution, such as the United States. There I am not aware of any successful challenges by a builder to get around that kind of requirement in providing access to handicapped people. In fact, the cost of such challenges is fairly prohibitive, and indeed we have to remember that usually the party that is defending the validity of the requirement would be the government involved. If you are trying to sue the government to have a law turfed out because it is not constitutional, you are facing a rather expensive process, and that in itself, I think, will discourage litigation.

Mrs Y. O'Neill: Thank you, gentlemen. I presume you are doing quite a bit of public speaking, because this is not the majority opinion that is expressed to us at our hearings. Maybe that is because people do not feel as comfortable as you do with the vocabulary. I have a feeling that some of them feel it is an Americanization policy as well, and we are getting quite a bit of resistance to anything that even looks like that.

I have not had a chance of course to read your presentation yet, but you did say two or three times that it is not just real property, and yet I listened and I listened and I would not be able to recollect now what it is. There must be some limitations. You gave examples of kinds of laws that would not be overtaken. I would like you to be a little more specific because I really do think your presentation will be relatively unique and certainly much more focused than anything we have had to this point on this subject.

Mr Watkins: Thank you. We must have planned this before, because that was one area which I did not get to because of the clock, and I appreciate the question. I agree with you at the outset that there is a significant amount of misunderstanding of property rights, what they mean in the charter and what they mean outside the charter. In essence, I think it is almost a technical question to a great degree. However, as Jamie has mentioned, we have seen property rights included in the 1960 Bill of Rights -- perhaps not the constitutional effect, but it has been there. We have seen them in the bills of rights of a number of provinces. For example, Alberta has an entrenched property right, for whatever good it will do. They are not very useful in terms of using them to challenge anything really.

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I know the Universal Declaration of Human Rights recognized property, and perhaps I will lead into the point you had raised about what property is. What other definitions, what other things might become property? I would like to refer to another part of the Universal Declaration of Human Rights, which is really an expanded view of security of the person, and I am sure the language I am going to read to you is under consideration by the current government of Ontario in terms of its conceptualizing and thinking about a social charter and what social rights might be included in the charter.

This is section 25 of the Universal Declaration of Human Rights: "Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family," -- this is only in "his" kinds of words here; this is the way it is written -- "including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood and circumstances beyond his control."

That kind of language is what I would anticipate will be coming out in terms of any concrete proposals that are made about the content of a social rights aspect or a social charter that would go along with our regular charter.

Strangely enough, the inclusion of property rights in the charter may, in the end, have a similar effect if we do not define "property" in the charter or restrict the definition of "property," let's say, to real property or real estate. I say that because of the evolution, both in Canada and the United States, of the courts in looking at, for example, entitlements. An entitlement is an expectation. It is what the law tells you you will get if you qualify and meet certain criteria. I guess an expectation is what a woman has in a marriage in terms of her share of matrimonial property. On the breakdown or at the end of that marriage, under the existing law in this province and in others, there is a deemed 50% ownership interest, a property interest, in the matrimonial home and indeed in other property acquired by both of the spouses during the course of the marriage. So I would see -- and the courts have already done this to a degree in Canada and are definitely doing it in the United States -- property, in terms of the charter protection or constitutional protection, as encompassing these kinds of expectations.

Property includes, as well, not just the interests a landlord has in an apartment building, but also the interests that tenants have in an apartment building if they are going to be dispossessed or if they are going to be affected by a taking by government.

It also, I think, would include pension rights, unemployment insurance benefits and expectations of receipts of these interests. Welfare benefits would probably become included as part of property if left to be broadly defined by the courts.

Some people will say, does that really have great significance? Apart from its symbolic significance, it may initially not have a substantial impact because we already have, in most of the laws that govern the giving of benefits for welfare purposes, certain remedies which recipients or potential recipients may have if they feel they are not being treated fairly or if arbitrarily they are being cut off. It may not change things that much, at least in the initial term, but I think the symbolic value of recognizing that property is what society perceives property to be, as viewed through the judge's eyes -- you are all going to say: "Judges are those people who walk backwards down the street because they are only affected by what has gone on before. They have a hard time being prescient and looking to the future." None the less I think it would be an important view.

It would not, of course, lead in the fullest extent to creating positive obligations on government to provide social welfare, for example, as some people in reading the section from the Universal Declaration of Human Rights that I read to you, would interpret that to provide. That, not so succinctly, is my answer.

The Acting Chair (Mr Winninger): Unfortunately our time has run out, but I would like to thank you for a most illuminating analysis of property rights. As Mrs O'Neill commented, it was both unique and focused and, to my recollection, the first presentation that has dealt substantively and extensively with property rights. For that, I thank you on behalf of the committee and we will certainly study the brief of the Canadian Real Estate Association with interest.

Mr Watkins: I should say that the Ontario Real Estate Association was really the forerunner in this field, I think going back into the 1970s. Although my principal involvement is at the national level, I think we have to recognize the contribution the Ontario association has made to this as well.

The Acting Chair (Mr Winninger): Thank you again. As this completes the agenda for tonight, I declare this committee adjourned until next Wednesday at 3:30 pm.

The committee adjourned at 2117.