Special of the week; Issue 4-71 "The Constitution of Canada" (Reel 2)
And they are the national educational radio network presents special of the week. The Constitution of Canada. The second of a two part series produced four special of the week from C.J. us Af-Am the University of Saskatchewan Saskatoon participating in this discussion. Our Senator Eugene for Izzy and Dr. Mark McGregor in this special joint committee of the Senate and House of Commons on the Constitution of Canada of which Dr. McGinn is joint chairman. They will be talking with Dr. Norman ward and Dr. David Smith of the Department of Economics and Political Science and Dr. Douglas Schweizer and Professor EPA Tollefson of the College of Law. Lead off this last part of their conversation. Here is the moderator Dr. Ward. We mentioned earlier the entrenchment of a bill of rights. I'd like to bring this up again in a more detailed discussion. Michael you already have the six of us here
probably the one who's most qualified to speak about bills of rights and their intrenchments. What do you think about the entrenchment of the girl of rights in the Constitution as against non entrained Bill of Rights. My basic reaction I suppose is a negative one I'm very much opposed. To the concept of intension to the Bill of Rights I think that it will do positive harm to Canada as a country rather than to protect human rights. My reason for saying this is that I believe that most of the key issues involving human rights problems and political decision this and I think that question really is. Or by what body these political decisions should be made. My own view is that politicians make these decisions much better then do clerics and judges and that in the final analysis of Bill of Rights is usually used to block needed reforms and to protect vested interests rather than to really protect the rights of people. I
think there are many many ways fostering human rights in Canada. I think that one of the great ways is to have a good Law Reform Commission and Mr. Turner is now moving in that direction I think there are all sorts of techniques like on moves and human rights commissions where you literally can do a good job. But to take that kind of person legal process which is very expensive very costly which leads to a legal nightmare in most types of situations is not a good thing. I don't feel effective and transparent is to make lawyers politicians. And I'm not sure that they are the best kinds of politicians and nor am I sure that this is the best arena to sell that kind of problem. Rather the lawyers may be better politicians and politicians are politicians. I know what I'm saying is that as an elected member of Parliament I don't have quite so much confidence and you serve the political judgement to decide all questions I'd like to see some questions. I retch I think there might be general agreement at the present time and preserving the future removed from direct control of
politicians eventually of course and probably wanted to have a third will override any kind of decision of the courts but it would have to have a continual will to do something of this kind and I couldn't optimise brother momentum there which would be in contravention of basic human rights and liberties. That's what I was going to say that I find it rather inconsistent for a member of parliament who has supported the War Measures Act to take that position because I think that is just the antithesis of the principle that he is making because here is a situation whether rightly or wrongly the government decided to act very swiftly very speedily to a kind of what I thought was a very pressing problem. Now I realize that even with and trying to keep it in. Have a situation where all human rights are discarded. The government can act in this fashion but the essence of what the government did was to act speedily to tilt the political consequences of its own judgement and to say in effect that the problem is so passing that
we want to deal with it here and. And come to it by what any other body might do and that her rationale was to say this is our decision vs. our political judgment and action as a political they're under an entrenched notion of a bill of rights. Oh no. Oh no I don't think so because surely we're going to get a ring which I don't think that any kind of bill of rights. Would accept American on provisions for emergency situations I'm positive you have such a thing in the government and the Constitution of India. And it seems to me that this is not at all inconsistent with the idea of and cringe from the right sort of cringe when it is not absolute as I put it the other name the countries are not impregnable. But you have got crunching on the ropes and I wonder about this last point that Professor smiles are going to rub some in Christ but a road blocking social programs. Is
that a good little Japan. They're on the ropes right to it and quite how wrong your list is. And also all going to depend on the groping how your rights are defined. I would agree for example that the American didn't write a very long time was a serious woman Brock in the world of social progress. But I think this was partly a matter of graft. And partly a matter with using that bill of rights of certain things which I picked a good man is broader than the current bill of rights in this country would not include. It seems to me that I'm sensing. A movement of opinion. That would limit the number of rights that we would encourage. What I thought I was rather conditional on political and legal right. And were pretty careful about the actual drafting of the rights that were in question Professor Brown upon skin appeared before our committee the other day and I thought he was he was rather cautious in this respect at all for the
government looking at it really that he. Complications of this sort. Yes I think he did and. Remarkable I think that the present government of Canada prime time for the Bill of Rights would not include and will as it's been called substantive due process which is the part of the aspect of Rights which has done most to block social progress I think that we've got to stay away from that. That's the type of school that Einstein writes was very cautious in his expression. Of the special prayers it's about equality under law and protection of the law. He thought those phrases were some dangers and that I must say I'm rather surprised to hear Garcon McQuiggan say that I don't know what documents he's reading because of federal laws that I've seen certainly do contain and process clause but not a substantive due process of a message or one you know that also is substandard because there is no distinction made between the two and the matter is simply a matter of interpretation by the courts so that they go or would be open.
To all of these substandard problems as well as the procedural problems. No I quite agree that if you entrenched legal rights for example as they are commonly described you can have quite a range escrow although the federal proposals have even in-focus than. That even if you are looking at a minimum type of entrenchment that is of the political race. The more basic notions of freedom of religion speech association assembly and freedom of the class. You lead him to in my view all sorts of horrendous problems with respect to interpretation and billing which in mine you are really really sickly politically search and I have assembled a list of statutes of the Parliament of Canada at the present time. That would be subject to attack. Entrenchment came about of only those very basic political freedoms. I think that would be a terrible tendency to argue places in Canada on the basis of American presidents. And I think that many of the American judgments are totally unacceptable in a Canadian context and our very bad
decisions. Now that process is already arising. If you look at any moves paper today you'll find where as a result of the dry bones case where you have an intention of swords that lawyers in criminal cases are arguing all kinds of defenses. And right now I think you can as a lawyer make a career of arguing the bridegroom's case without any difficulty whatsoever. Now I think that one of the requirements of good criminal law is that it should be just obviously but it should also be speedy and it should also finally determine one's rights. And I don't think you ever know where you stand when you have an entrenched Bill of Rights. Right now for example I would defy anyone to tell me whether any stat. I think India now is dealt with any degree of certainty whatsoever. Well I'm not suggesting that they're going to enact this kind of thing. But what I am suggesting here is that any changes to be made it should be made by parliament. After due deliberation and not the piecemeal sort of expensive shopping that we're now going to see in Canada I think this is very recent because we actually drive our case not
explaining it in the dry bones case the court ruled that the Bill of Rights took precedence over the Indian over the Internet. Lestrange is the entire India. There also is an interesting question about the Indians in the region of America which they are the only group mentioned. That's right and one of the interesting things about the drybones decision is that that the court did not consider that the only federal jurisdiction. Over the Indians is based on us because there were any number. Of. Legislative jurisdiction over India and this must be a class notion. Now the class notion was the very notion that was held to be improper. In the dry bones of the decision so that in effect I think you have a Supreme Court saying that they believe any act. Is discriminatory. But the implication is that it's discriminatory against When the intention was that it would be discriminatory in favor. Yes. And it's very interesting that even in the United States the courts have held that class legislation is not a violation of fundamental rights and they have in fact generally
upheld the same type of legislation that we have. In our in you. And you even oppose absolutely writing into the Constitution the kind of protection of the Bill of Rights has has given in the dry bones case. Yes I would always leave parliament as the master or the final arbiter of these kinds of social issues. But isn't it true that in the United States with all the faults of the Constitution a bill of rights or there have been many occasions when in fact the kind the encroachment of the right to do would protect citizens that the best case I can make of our hand is that the case of the niece of the Japanese-Americans who did appeal successfully to many individuals. To the right. But generally speaking they're lost because most of the Japanese. The solution is a game that went against the Japanese in the second world war and a good result was no different than our own Japanese Canadians please. I think the only reason Rylie discuss entrenchment in a respectable clash at the present time is because of the American desegregation cases. I think that most Canadians look at the American Supreme Court as a
protector of the negro in the United States at the present time and I think that that is a fair judgment and that is an argue argument in favor of entrenchment. But I think looking at what the court has done as a whole this is just a very small part of it and I think the American system has worked against the negro rather than in its favor in the sense that if in Canada if you wanted to change a social policy parliament could do it. I think there are so many checks and balances in the American governmental framework one of which is intensely that you no longer can effectively society and many young people who are being turned off and feel that they have to work outside of the system and that there is no within the system. But this is precisely why in Canada we need a bill of rights rather Americans do in my opinion. The U.S. government as you said there I agree to many checks and balances. I don't include the Bill of Rights as that with my service of those I prime the congressional presidential division of powers as the most serious of the American government is incapable of dealing with the modern world as a result of this division of ours. But in Canada we have
an executive arm which through its control of the legislature has such an incredible amount of power that here are much more than in the United States I believe we do need this. Limitations on the powers of legislators and I think you've already admitted that the Supreme Court has already assumed the power to interpret the existing bill of rights which is really a legislative intent constitutional bill. To take priority over I dare statutes so we already have them and us in a stance in effect about rights. Alright talking about is whether we're going to regularize this acquittal it has to just throw away the sponsibility cream thinking I was recently in the United States or the arm of the scoring bill that Congress has passed in which there are a number of sections are dubious as to the constitutionality and that it's going to put a responsibility on the Supreme Court as the one institution that will have to take responsibility presses break down sections of it. Your Supreme Court has become to that in a war with all elements in American society for one reason or another because of
various decisions that I wonder if we would help him with the Supreme Court. This great responsibility of protecting the entrenched rights that parliament also acts in a less responsible fashion is it seems that you think the Congress is willing to sit and look at the sponsibility lead from the lawyers and I think there's also another point that should be mentioned with respect to infringement in the United States. Well for us to say that the American Supreme Court is a very liberal sort of a court protecting fundamental human rights and so forth. This hasn't always been the experience with the American Supreme Court. And with regard to things like the fifth amendment they have turned themselves completely around in a half century. And. When you talk about the fundamental human rights that still hasn't prevented the Supreme Court from regarding laws suppressing communists and so forth. As being perfectly valid in the context of the American Constitution. So I
wonder whether indeed. We are placing too much faith and too much responsibility in a group of. Sometimes nine man. Can we really expect a majority of the court. To make decisions of this nature. Shouldn't we be depending upon. The elected representatives to make some of these decisions rather than expecting change to come through the medium of the court. I was wondering when she was talking about the entrenchment of certain fundamental rights which ones he had in mind as being the preserve of the Supreme Court of Canada. Well I thought I indicated that what do you recall the basic political right doc might have mentioned a moment a moment or so ago. And so. We would call them procedural legal rights. Kind of thing that is included in the present. Bill of Rights faster than even the government. This is what I was thinking I was what I
was thinking of when I spoke of narrow religious was that sort of thing and is expending a lot of the human rights and economic rights and all this kind of thing which I think really difficult and cringe adequately without the British group was doing blocking messages research or social change I'm through but I have a practice I want drama of this business of entrenchment for several reasons one is that I'm rather horrified by the smug complacency of many of the common law lawyers it seems to me about the existing protection of human rights. And revenues that I am on my have to remember them. The 30s. And I remember growth groups are one of the more missions where I was living at the time and that other scene was hard and out in Alberta and I can remember most of the kind of thing that was done in the Japanese Canadians Spanish police.
And I can't say I think of the situation with the problems. And I suspect that this may even do a factor in the prime minister's. Strong convictions and of duplicity as we meet your way and I had a minor but fairly obstreperous way of our selves and instincts when I think I have a strong connection of the kind of thing we're up against and the difficulty in many instances of asserting rights because we simply question right. Follow up Doctor questions kind of and I'd serve it to me it seems important that we have a bill of rights to strike prevention laws than that with them that we have when they strike down federal law so of course I think it should do both. But I see the problem of us as unable to protect the rights of people against very very about provincial government access and we have such a collection of
what we really have asked for mentioning names but in the mind of any parts of the Congress when it was really well I might as well mention one other than Mr. smaller with Rangers let you sleep I think. Might easily have been struck now on the dangers of going to graft and cringe to the right. Maybe a common heart warrior but I'm certainly not smug about the common law and I think perhaps that. People have more faith in judges than I have. Frankly. I don't think I've made that mine's different. If we had had in France the rights and the. Caliber of our jobs as in the past. Has never been on such a. High order that you could have expected them to have taken the right gear at all times.
Seems to me that if you have. A judge who was appointed. When political considerations being certainly a prerequisite to his appointment you're going to get a politically motivated or at least a politically biased judgement. I would say that while the Alberta Press Bill case has usually been taken as the classic. The Supreme Court on freedom of the grass right might make pretty good reading that is in many respects very bad law. Certainly that not. My view. Represented a well reasoned judgment didn't follow the laws of the state and I'm a tosser that is a correct so. Well I don't think they're even one of the scenes and I think that I don't think you can find the majority decision of the Supreme Court along the lines of certain Greg was expressing his opinion but the racial division then die and that and the other saying I'm a layman not a lawyer but as
I read the racial reason and I was not. Civil liberties of the British nor the Constitution are similar in principle with me. It was a strict question of this is beyond the powers of the legislature the problems and then various tribes that just couldn't interfere with freedom of the press. Except for. The lessons on which what qualifications and was just what I would of course want out of that he didn't think that the part of the kind of the legislation the problems could interfere with certain things. I don't think this is actually part of the correct by the way when I talk about small present company excepted I was. People are going to Dr. Ferguson is certainly quite right only a minority of the judges dealt with the civil rights problem the majority held that the quest bill was tied in with other Alberta legislation which had already been held to be invalid on the basis of the division. Oh it's rather interesting though that in almost all of the examples that
Dr. Forrest uses as being very bad legislation in Canada almost all of it was upheld in the United States under the Bill of Rights. So that in my view when you need the protection you don't have it when you don't need or want the protection you're going to get and you're going to block social reform. And so in almost all of the examples that he uses the American Bill of Rights did not help. Something also that I would like to ask him. Is it not fundamentally undemocratic and very wrong principle to say that people cannot be trusted and accordingly you have to set up an all weather sheet in this case of course a judicial all authority. Invest in five old man repowered. To save the people from themselves. I suggest to him Look this is very very wrong and very very bad because in effect you're saying that the people can't be trusted. But how somebody because of our judicial system 5 million on the court Candy. I wonder what his rationale for that approach.
Well I don't see first of all that I am I'm not prepared to say. That to him and let him be crossed. I think there is no Mina and I grow tired of this democracy all the time and I think the real woman are in a well rounded and judicious eye capable of Constitution who are not elected who are appointed. Some particular kinds of job I didn't want a head of state with certain discretionary powers. President of the Irish Republic for example. Especially prior to the event. Yes but then again the Crown still retains a marginal discretionary power for extraordinary and I think this is reasonable I think. I'm not in favor of electing broke the law. Logical you
sure are going to saw me in the box. You are like dogs are good. Well I'm not a fan of theirs I'd probably get on with very much were specially now no I'm not under any illusions about the perfect rhythm legs but learner might say that in every particular kind of situation. I think maybe the legislator who made one time of course it wasn't simply the people in the letter they are looking for as a part of the things completely but the chapter there. Ah yes but we have the sun to protect us from remember when we were here in the morning. A good argument for having a. Point recently. I think ones where you have to sell the Lincoln represent quite a rather serious
mistake and it well to have some kind of in certain areas on what they can do. I would want the check to be pretty credibly pretty few women. But I'm sure that there is some kind of shock. I have lived in the middle of my life and I have not bought my moving in the missions of the legislature any more than you have in the nations of God. I haven't got a woman and I have a very high respect for our members and a very high respect for good measure. But I think you have to allow for human interaction and lot and will happen if I make arrangements to protect her in the interests of the people from a source of power in either. It's precisely because you have imperfections and a lot of things to live that you need to not because you live a double protection if you can have it but in effect you're saying you need a protection.
Against a politician. But you don't need a protection against Jabbers and this I think but lately with all the break still a bit more likely why couldn't you build into this protection against you. But then you're arguing the question of who watches him and he won't let you in but I see I see it as being a process of tension I think that if you lose control that growler appointments are mean by the executive chair of the process slightly in the next few years but I think that part will likely remain the case no majority has ever provided a long period frustrated that the will of the contending majority of people in the United States for example even read the obstructionism of the judiciary that you mentioned took place on the substantive due process clause. Eventually this regret came around to the vast majority will always get their way but it seems to me that you still have a bit of tension along the way. When the legislature is doing something with you it really was pretty questionable whether doesn't really harm sometimes a sack is held up for a few years by Judicial Watch which is prepared to say no.
Like Ezekiel to suggest that the federal politicians that we're talking to this morning are becoming a democratic party I would like to know this. It seems to me. That if we accept in principle we really in effect are accepting an American system which in my judgment has worked very badly for a system in Canada. The notion of parliamentary sovereignty which in my judgment has worked very very well and it seems to me that the onus should be on those propounding this genius to show where it will be for the better and I would like them to show me or to show anyone where they've made that case and where you can take any system which has used this for a long period of time which has come up with results. Similar or as good as the results that we are now getting in Canada or in England at the present time. Well I think it might be worthwhile when more of the people in society just issued a power but I haven't seen it I've seen the reports went through rather than. Suggesting a meet and then pregnant right.
So possibly all the Lokpal bill and then the whole economy going to have to happen and I think you get images that demonstrate during the past several minutes why Canadians have so much difficulty deciding on what they want to do about the Constitution. The six of us here in one way or another all have doctorates we all have qualifications to discuss these things and we have demonstrated a total inability to agree on whether or not we should entrench one small part. Of the Canadian Constitution. We've been talking about. There are a lot of things we haven't discussed this morning I had hoped we might have time to discuss. The role of the Dominion Provincial Conference as distinct from parliamentary privilege to legislators in the role of the amending in the amending process. There is not now a time record of such a discussion and there's nothing left for me to do now that I think you are giving this conversation to a close. You heard Dr. Mark McGregor join Chairman of the special joint committee of the Senate and House of Commons on the Constitution of Canada and
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- APA: Special of the week; Issue 4-71 "The Constitution of Canada" (Reel 2). Boston, MA: University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Retrieved from http://americanarchive.org/catalog/cpb-aacip-500-8g8fk72q