CHAPTER VI

The 1987 Accord and Charter Rights

1. By far the most controversial area explored in evidence before the Committee was the suggestion that the "linguistic duality/distinct society" rule of interpretation might be used to "override" particular Charter rights. The question was raised most extensively by women's groups, but the concern applies as well to all those who rely upon the equality guarantees of section 15 of the Charter, and, indeed, on any of the other rights and freedoms guaranteed by the Charter.

2. These groups claimed that little comfort could be drawn from the provisions of section 2(4), since these only state that nothing in section 2 derogates from the powers, rights or privileges of Parliament or the government of Canada or the legislatures or governments of the provinces. If section 2 is interpreted to permit governments and legislatures to carry out their respective "roles" at the expense of Charter rights and freedoms, then arguably there would be no "derogation" from the powers of any other level of government or legislature. The "derogation" would be at the expense of individuals and such a derogation is not prohibited by section 2(4).

3. Nothing in the proceedings of the Joint Committee has given rise to more searching examination and consideration on our part than this issue. We acknowledge that what began as a legal argument grew into an important matter of public policy and perception. It is obvious that a substantial number of women believe that their hard won Charter rights are threatened.

4. The great weight of constitutional opinion put before the Joint Committee however, leads to the conclusion that the fears that entrenchment of the "linguistic duality/distinct society" interpretative clause will cause such an erosion are not justified. This is not to deny the expertise of those who perceived a problem. Nor is it to dismiss the searching questions and troubling conundrums raised by the witnesses-- especially those who appeared on behalf of women's groups--who expressed their fears that the promotion of one set of constitutional values (namely, the "linguistic duality/distinct society") might undermine other important constitutional values (such as gender equality rights).

5. After a good deal of discussion we have come to the view, for reasons that we shall outline, that the more fundamental problems raised by constitutional experts who made submissions on behalf of the women's groups are problems rooted in the Charter provisions of the Constitution Act, 1982 itself. These matters of controversy will remain whether or not the "linguistic duality/distinct society" rule of interpretation is added to the Constitution Act, 1867. We do not believe that the entrenchment of this clause will in any realistic way erode the present constitutional protections of individual rights, including gender equality rights.

6. We believe that the sort of discriminatory legislation feared by some of the women's groups would have little if anything to do with the preservation of linguistic duality or the promotion of the distinct society. This became clear, we believe, as the factual assumptions on which these concerns were based were explored at great length and with admirable candor in the submissions made on behalf of the women's groups. This is not to suggest, that we see the proposed new rule of interpretation as meaningless. We recognize that the "linguistic duality/distinct society" clause applies as a rule of interpretation, but it is not a new grant of power that will enable governments to do something that they cannot now do.

7. For the sake of completeness we should set out in their entirety the two Charter sections particularly relied upon by critics of this aspect of the Accord.

Section 15

15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (I) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Section 28

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

8. Much of the argument about whether the "linguistic duality/distinct society" clause will undermine gender equality rights can also be applied to potential erosion of the other rights and freedoms guaranteed in the Charter. This would include freedom of religion and freedom of expression and the important legal rights guaranteed by section 7 of the Charter, namely the right to life, liberty and security of the persons not to be deprived thereof except in accordance with the principles of fundamental justice. However, as the issue was raised with us in the context of gender equality rights, and in order to explain the Committee's conclusion that entrenchment of this clause will not result in erosion of these rights, it is appropriate to review in some detail the legal arguments that were presented to us on this point.

9. By virtue of section 52 of the Constitution Act, 1982, any law or governmental act that is inconsistent with the Constitution of Canada, including the Canadian Charter of Rights and Freedoms, is, to the extent of the inconsistency, of no force or effect. Unless therefore, there is some constitutional rule or principle leading to a different conclusion, any law or administrative measure designed to protect Canada's linguistic duality or promote Quebec's distinct society, which at the same time infringed upon the gender equality rights guaranteed by section 15 or section 28 of the Charter, would to the extent of the inconsistency be of no force and effect unless it were "saved" by section 1 of the Charter (and we shall return to the issue of section 1 presently). In other words, according to normal constitutional principles, legislation or governmental actions taken in furtherance of linguistic duality or the distinct society would be subject to Charter review.

10. Is there anything in the "linguistic duality/distinct society" clause to suggest that this normal principle would not apply? On its face, there is nothing in the 1987 Accord to suggest that the values of linguistic duality or Quebec's distinct society are to override the Charter or that legislation or governmental acts in furtherance of these values are to be immune to Charter review. As Maître Yves Fortier, Q.C., told the Committee:

I believe that those fears are totally groundless. And if it were not for the seriousness of those organizations that expressed those views, I would simply say we were dealing with a smokescreen.
(Fortier, 12:82, 83)

The Ontario Separate School Funding Reference

11. The field of controversy was widened on June 25, 1987 when the Supreme Court of Canada delivered its judgement in the Ontario Separate School Funding Reference. A large number of witnesses, including representatives of the National Association of Women and the Law, the Women's Legal Education and Action Fund, the Canadian Advisory Council on the Status of Women, the National Action Committee on the Status of Women and the Ad Hoc Committee of Canadian Women on the Constitution, told us that this decision raises a serious possibility that discriminatory laws and governmental acts in relation to Canada's linguistic duality or Quebec's distinct society would be immune from Charter review.

12. Other witnesses, including representatives of Le Conseil du statut de la femme du Québec and Professor William Lederman, asserted that the decision in the Separate School Funding Reference had a very narrow and specific application and was irrelevant to the present debate.

13. Because the true meaning of the Separate School Funding Reference has come to play a central role in connection with this aspect of our deliberations, we think it appropriate to deal in some detail with precisely what was and what was not decided by the Supreme Court in that case.

14. The Supreme Court of Canada decided that a provincial legislature, enacting a statute under the power granted by section 93 of the Constitution Act, 1867 to expand or to enlarge a system of denominational education, cannot be challenged on the basis of the provisions of the Canadian Charter of Rights and Freedoms that guarantee freedom of religion and equality and the equal benefit of the law. The principal judgment of the Court in this reference runs to 50 pages and is supplemented by two concurring judgments. In the course of her reasons for judgment, which was the judgement supported by a majority of the members of the court, Madame Justice Bertha Wilson stated (at page 48):

... the special treatment guaranteed by the Constitution to denominational, separate or dissentient schools, even if it sits uncomfortably with the concept of equality embodied in the Charter because not available to other schools, is nevertheless not impaired by the Charter. It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the constitution, particularly a provision such as s. 93 which represented a fundamental part of the Confederation compromise.
(Emphasis added)

15. A number of the witnesses from whom we heard, including Ms. Mary Eberts, an experienced constitutional lawyer from Toronto who represented the Ad Hoc Committee of Women and the Constitution, told us that these words could mean that the exercise by a legislature of any power granted to it by a provision of the Constitution, and particularly a provision that forms a fundamental part of a "Confederation compromise", is immune from Charter review. Other proponents of this reading pointed out to us that, once entrenched, the "linguistic duality/distinct society" clause would--like section 93--become part of the Constitution Act, 1867. They also argued that the courts may well consider this clause--again like section 93--as part of a "Confederation compromise" despite being enacted 120 years after Confederation. If this is so, the argument continues, then "linguistic duality" or "distinct society" legislation, however discriminatory, may be shielded from Charter review.

16. However, in his separate concurring judgment in the Supreme Court of Mr. Justice Estey appears to qualify the broad language used by Madame Justice Wilson by pointing out that the denominational school power is inherently discriminatory. It cannot be exercised without making distinctions that would otherwise infringe Charter rights. Thus it is a special case. Mr. Justice Estey wrote (p. 11):

Although the Charter is intended to constrain the exercise of legislative power conferred under the Constitution Act, 1867 where the delineated rights of individual members of the community are adversely affected, it cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act, 1867.
(Emphasis added)

17. It is not, of course, the task of the Joint Committee to deliver legal opinions, and we do not purport to do so. However, it is necessary for us to determine whether the concerns expressed by Ms. Eberts and others are of such weight as to justify calling for amendments to the 1987 Accord. Ms. Eberts candidly admitted that the sweeping result she feared could arise if, and only if, the "linguistic duality/distinct society" rule of interpretation were held to be a grant of legislative or government power like section 93 of the Constitution Act, 1867. It is only if this clause gives governments or legislatures some new source of power that they did not formerly have that it can be analogized to section 93, which was at issue in the Ontario Separate School Funding Reference.

18. On this issue, we accept the views of Professor Beaudoin, Professor Lederman, Me. Fortier and others that the "linguistic duality/ distinct society" clause is not a grant of legislative or government power. This clause is, as we were repeatedly told, an interpretative clause. It directs the courts on how to interpret other constitutional provisions; it does not give any new legislative or executive powers to anyone. That is why subsection (2) and subsection (3) of the clause speak about "affirming" various "roles". To "affirm" is not "to create". It presupposes that a legislative or executive power necessary to exercise the "role" already exists. We had the impression that Ms. Eberts also believes this to be but she is concerned that the contrary could be held to be the case.

19. We believe the Separate School Funding Reference cannot mean what the women's groups fear it may mean. If Madame Justice Wilson's words are to be given the meaning suggested, they would practically put the Charter out of business. It would mean that no exercise by Parliament or by a provincial legislature of any of its powers under section 91 or section 92 of the Constitution Act, 1867 could ever be challenged on the basis of the Charter. The Charter could therefore never apply to any legislation that is intra vires. But section 32 of the Charter specifically states that it does apply to any enactment within the legislative competence of Parliament or the provinces. And the courts, including the Supreme Court, have struck down legislation because of an invasion of Charter rights regardless of the fact that it was enacted pursuant to a power assigned to Parliament or to the provincial legislatures by the Constitution Act, 1867.

20. Professor William R. Lederman gave his opinion to the Joint Committee that the Ontario Separate School Funding Reference must be interpreted as restricted to section 93 of the Constitution Act, 1867, which allows the provinces to provide religious schooling in a way that would otherwise be treated as discriminatory.

In the separate school system of Ontario, yes, the denominational characteristics, the religious characteristics, have special protection. But this does not mean there can be sex discrimination in the hiring of teachers. Section 28 would apply. Section 15 would apply.

... It is a unique situation. This is why I say I just do not believe that Madam Justice Wilson intended to speak generally about plenary powers of legislatures in general. This is a special situation.
(Lederman, 7:36, 37)

21. The "narrow" reading of the Ontario Separate School Funding Reference is also confirmed by the following passage in the concurring reasons of Mr. Justice Estey:

Action taken under the Constitution Act, 1867, is of course subject to Charter review. That is a far different thing from saying that a specific power to legislate as existing prior to April 1982 has been entirely removed by the simple advent of the Charter. It is one thing to supervise and on a proper occasion to curtail the exercise of a power to legislate; it is quite another thing to say than an entire power to legislate has been removed from the Constitution by the introduction of this judicial power of supervision.
(Emphasis added)

22. In other words, the reason the provinces' power under section 93 with regard to denominational education is shielded from Charter review is that this particular power cannot, as the Supreme Court stated, be exercised without violating those Charter provisions. By its very nature, a power exercised with regard to denominational education must legislate in an unequal manner and in a manner that abrogates full freedom of religion. For this reason, to make section 93 subject to the Charter rights to freedom of religion and to equality would have been tantamount to repealing section 93 entirely. In the words of Mr. Justice Estey, "the purpose of [the] grant of power [in section 93] is to provide the province with a jurisdiction to legislate in a prima Sacie selective and distinguishing manner with respect to education". It is only when a constitutional provision gives Parliament or a provincial legislature a power or jurisdiction which cannot be exercised except in a manner inconsistent with the Charter that the Charter does not apply. Where the power or jurisdiction can be exercised consistently with the Charter, then the Charter will apply to ensure that the power is exercised in a manner that respects the Charter rights of individuals.

23. Even if the "linguistic duality/distinct society" rules of interpretation were taken to be a grant of constitutional power, which seems clearly not to be the case, there is nothing in the submissions that we have heard to suggest that in fact Quebec's distinct society is inherently discriminatory, i.e. that it cannot be promoted except in a manner that contradicts the Canadian Charter °S Rights and Freedoms. As Maitre Yves Fortier pointed out:

The critics who are crying wolf forget that, in comparison with Canada as a whole, Quebec has scarcely been behind-hand in promoting the equality of the sexes. Actually, people seem to be forgetting, within the context of this debate, the very existence of the Quebec Charter of Human Rights and Freedoms. The Quebec Charter prohibits any distinction, exclusion or preference based, amongst other things, on race, colour, sex, civil status, social condition, pregnancy or language; to this prohibition is added a preponderance over any Quebec law, even those passed after the Charter, unless there figures therein a notwithstanding clause.
(Fortier, 12:83, 84)

24. None of the women's groups asserted that Quebec's distinct society is inherently discriminatory. And insofar as the '`linguistic duality/distinct society" rule of interpretation can be said to favour linguistic discrimination, it adds nothing to the preferred status of the two founding languages already entrenched in the Charter. This is not to say that the government of Quebec, like every other government, is beyond using its power in a discriminatory way. But once it is established that such legislation is subject to Charter review, discrimination can be attacked in the courts by women and others, relying on their Charter rights in the usual way.

25. We recognize that the conclusion that legislation enacted in fulfilment of the roles described in section 2(2) and (3) is amenable to Charter review does not dispose of the issue whether the "linguistic duality/distinct society" clause could come into conflict with Charter rights. That possibility led into the second area of concern raised by women's groups, namely, section 16 of the Accord.

26. Section 16 specifies that certain constitutional provisions relating to multiculturalism and aboriginal rights, including two provisions of the Charter, are not "affected" by proposed section 2 of the Constitution Act, 1867. It was feared by some witnesses that mention of only two provisions of the Charter as not being affected by the "distinct society" clause must mean by necessary implication that the other provisions of the Charter, including the gender equality rights provision, could be affected.

27. Section 16 is itself an interpretative clause designed to preserve certain constitutional values in the face of the "distinct society" and "linguistic duality" interpretative clauses. Its function is thus to "interpret the interpreter" and, as several witnesses commented, the Constitution seems to be increasingly entangled with numerous interpretative rules that only serve to confuse matters.

28. At this stage we invoke the common sense of Mr. J.W. Pickersgill, who gave the Committee his robust analysis of the situation:

A Constitution should be as brief as possible and a Constitution is not a Christmas tree on which everybody is entitled to get some kind of special recognition for some kind of special thing.

It also seems to me that most of the people who have opposed Meech Lake seem to assume that unless you get something into the Charter of Rights, nothing can be done about it. They seem to think parliaments and legislatures do not matter and if they do that they are against the people, which seems to be pretty absurd since they have to get the votes of the people. I think it would be a great mistake to try to import into the Meech Lake accord, as revised in the Langevin Building, anything that is not there already.

I understand the reason for section 16 and I think everyone else does. It was because two of the provincial Premiers were under great pressure and they put great pressure on their colleagues to reaffirm what was already in the Charter, but it does not seem to me that matters at all as far as anything else in the Charter is concerned. It is just as sacred as those clauses.
(Pickersgill, 10:128)

29. Be that as it may, a number of thoughtful and broadly representative women's groups argued that gender equality rights also needed to be treated as a special case and safeguarded from "linguistic duality/distinct society" laws. They urged that section 16 ought to be amended to specify that section 15 and/or section 28 of the Charter as well are not to be affected by proposed section 2 of the Constitution Act, 1867.

30. The task of this Committee, as we see it, is to attempt to ascertain exactly what section 16 does and, in the light of that understanding, to assess the need for recommending an amendment to it.

31. It must be acknowledged at the outset that various distinguished constitutional experts appearing before the Joint Committee had great difficulty in providing a legal rationalization as to why certain sections are included in section 16 and why others are left out.

32. Section 16 was added on the road between Meech Lake and the Langevin Block. Senator Lowell Murray sought to justify section 16 on the following basis:

Multicultural heritage, or that reference in the Charter, is itself an interpretative clause, and the various references to aboriginal peoples relate to collective rights, if you wish, not to individual rights. It was for this reason that those two matters, our multicultural heritage and native peoples, both identifiable groups with a cultural aspect, were mentioned--out of an abundance of caution. Frankly, we do not think the interpretative clause respecting the distinct society or the linguistic duality of Canada could conceivably detract or diminish from those other recognitions in the Constitution. But because multiculturalism and native peoples related to groups with a cultural aspect, it was thought appropriate to put in that nonderogation clause.
(Murray, 2:39)

33. Two of the provisions in section 16 are interpretative (sections 25 and 27) but the other two are not. Section 91(24), also mentioned in section 16, is the source of Parliament's power to legislate in relation to Indians and lands reserved for Indians. Section 35, also mentioned, recognizes and affirms existing aboriginal and treaty rights. Neither of these sections is merely a guide to interpretation. Moreover, other Charter sections that are interpretative (such as sections 26 and 29) are left out.

34. Some experts sought to rationalize section 16 as referring to groups whose Charter rights were only vaguely defined, and thus in need of extra protection, whereas, it was said, that the women's rights and equality rights sections in the Charter are clear and unambiguous. The problem with this theory is that only two of the four sections referred to in section 16 are Charter sections and one of the other two sections mentioned, section 91 (24), does not deal with individual rights at all, vaguely or otherwise.

35. La Fédération des femmes du Québec suggested that perhaps section 16 is an attempt to harmonize a small cluster of rules selected on the basis that there might otherwise be room to believe that they could come into "intercultural" conflict, and that other provisions were omitted from section 16 because there was no room to suspect the potential for such a conflict:

According to our understanding of section 16 of the accord, section 25 of the Canadian Charter of Rights and Freedoms, concerning native people, and section 27, concerning multiculturalism, were expressly mentioned in section 16 because the new section 2 of the Constitution Act of 1867 could be interpreted to mean that the recognition of Canada's fundamental characteristics and of Quebec's fundamental characteristics and of Quebec's distinctiveness could undermine the rights provided for in those sections. But since the revised section 2 of the 1867 Act does not refer to matters that can, given their very nature, affect women's rights, we thought it quite plausible that only sections 25 and 27 of the Charter be mentioned.
(13:43,44)

36. Professor Wayne MacKay thought that section 16 does not perform any useful function at all:

Section 16, in trying to clarify what we meant by "distinct society", indicates it is not to have any impact on section 27, multiculturalism. It is not to have any impact on sections 25 and 35 of the Constitution Act, 1982, or on section 91(24) of the Constitution Act, 1867, native rights.

By doing so, I quite frankly think they have further confused and muddied the waters. In my opinion, you would be better off without section 16.
(MacKay, 3:48)

37. Maître Robert Décary thought the reasons for section 16 must have been political rather than judicial:

Obviously Quebec must be feeling that women in Quebec are protected enough, that it was not a major concern at this specific stage. That this is the stage where we want to get Quebec in, and Quebec includes Quebec women as well.

I honestly do not know why all the other articles were not put there (i.e. section 16), but I suspect these were put in just for political purposes.
(Décary, 4:72)

Maître Yves Fortier was of the same opinion:

I do not think it was juridically essential to do it.
(Fortier, 12:94)

38. Many of the witnesses from whom we heard spoke of section 16 as "shielding" certain constitutional provisions from the effects of the "linguistic duality/distinct society" rules of interpretation. La Fédération des femmes du Québec pointed out that the provisions dealing with Canada's multicultural heritage and with aboriginal peoples are concerned with cultures that might be seen as conflicting with Quebec's distinct society. This is true, but the cultures are not in any event mutually exclusive. The distinct society is itself a major "culture" within the Canadian multicultural mosaic, and aboriginal peoples and other cultures within our multicultural heritage are important elements in Quebec's distinct society. To the extent these cultures can be treated separately the courts could, as Professor Wayne MacKay observed, have some difficulty in accommodating their conflicting cultural demands whether section 16 is there or not:

It [section 16] states that section 2, distinct society, will have no impact on multiculturalism and no impact on native rights. I think this is unlikely to be true.

I think what is going to happen is that the courts are going to have to make some difficult value choices in many cases between promoting a distinct society in Quebec and in doing so limiting the rights of certain ethnic groups or multiculturalism in Canada. In some cases there may be difficult choices between the rights of aboriginal people in Canada and the distinct society in Quebec. The nature of these principles in constitutional law is that they do conflict.
(MacKay, 3:49)

The "linguistic duality" rule of interpretation stands on a different footing. The preferred status of the English and French is already entrenched in the Constitution.

39. Whatever the level of protection, the question remains whether gender equality rights ought to be added to the list of sections mentioned in section 16.

40. In order to answer this question, we must first determine whether the "linguistic duality/distinct society" rule of interpretation will have a negative effect on these rights. Another way of asking this question is whether there is any real or potential conflict between proposed section 2 of the Constitution Act, 1867 and the gender equality rights guaranteed to men and women by the Charter.

41. Dealing with the "distinct society" portion of this clause, neither La Fédération des femmes du Québec nor Le Conseil du statut de la femme du Québec see any potential conflict. Representatives of Le Conseil told us:

"Nous ne souscrivons pas à la malheureuse interprétation laissant croire que les Québecoises peuvent se voir priver de leurs droits à l'égalité en raison de l'application du concept de "société distincte". D'aucuns, dont certains groupes de femmes ont devant vous manifesté des inquiétudes en ce sens."
Le Conseil du statut de la femme du Québec (1:5)

42. La Fédération told the Joint Committee:

... if only the Province of Quebec is recognized as a distinct society, we strongly hope that our sisters will not see threats where we feel they do not exist. In answer to the question: Does the concept of a distinct society threaten Quebec women? the Fédération des femmes du Québec answers: No.

The purpose of the accord is to bring Quebec into the Constitution, and the protection of the French language, of our culture, our educational system, our network of social services, our volunteer associations, and so on, does not create a situation particularly apt to jeopardize women's rights.
Fédération des femmes du Québec (13:43)

43. Some Quebec men asserted an equal right to be heard on this topic, and Laurent Picard told us:

Also, there are about 50% of women in Quebec. They are not inactive and passive. They can fight their own battles.
(Picard, 12:63)

44. The Women's Legal Education and Action Fund gave us hypothetical possibilities of conflict between the distinct society and gender equality rights. These involved the possibility of denying women access to therapeutic abortion services on the grounds of Quebec's dominant religion, the refusal to provide women with education in "nontraditional trades" or the refusal of educational institutions to hire women on religious grounds. While stressing that these were only hypothetical examples, LEAF declared that they did show potential for conflict between the concept of Quebec's distinct society and gender equality rights.

45. The Ad Hoc Committee of Canadian Women on the Constitution attempted also to demonstrate potential conflicts between linguistic duality and gender equality rights. Ms. Mary Eberts cited the potential for provincial language-orientated programs aimed at enhancing employment opportunities for members of the minority official language group undertaken at the expense of affirmative action programs for women, or the rationing of social services in a manner that benefits disadvantaged linguistic groups rather than disadvantaged women. The Committee finds it difficult to see how any of these examples raise the issue of "linguistic duality" potentially overriding the Charter. In effect this argument suggested that the Charter could be used by the courts to set government priorities and budgetary allocations even when, as Ms. Eberts acknowledged, "the constitutional issue lies between two equally appealing exercises in promoting minority interests or social values". These examples do not raise a Charter issue at all, in our opinion.

46. Moreover, in none of the hypothetical situations cited by the women's groups was it alleged that the "linguistic duality/distinct society" rule of interpretation would have an impact on section 15 itself to permit inequality or discrimination. Rather, their concern is directed to the "reasonable limits" limitation in section 1 of the Charter.

47. Section 1 of the Charter provides that the rights and freedoms set out in the Charter are guaranteed subject to "such reasonable limits prescribed by law as can be demonstrably justifiable in a free and democratic society". If the concern is that Quebec's distinct society or Canada's linguistic duality could prevail over equality rights, it must be because the women's groups fear that courts may hold that the "linguistic duality/distinct society" factors could give rise to "reasonable limits demonstrably justifiable in a free and democratic society".

48. As Professor Beaudoin and Professor Lederman informed us, the presence of section 1 has, from the very entrenchment of the Charter, made it possible to bring before the court evidence of social, political or historical factors that might justify what would otherwise be an infringement on a Charter right or freedom. Professor Beaudoin and Professor Lederman expressed the opinion that the "linguistic duality" and "distinct society" clauses may indeed impact on a section 1 justification, and that governments may indeed attempt to rely on one or the other of these factors to prove that legislation infringing Charter rights is nevertheless "demonstrably justifiable in a free and democratic society". Adding an explicit rule of interpretation, could give added force to arguments based on these factors. If there was any doubt previously that Canada's linguistic duality or Quebec's distinct society were legitimate matters to be considered under section 1, that doubt would now be dispelled. We note, however, that constitutional experts also informed us that this possibility was already open to a government and did not depend on Canada's linguistic duality or Quebec's distinct society being entrenched in the Constitution.

49. Some witnesses appeared to be concerned that mere mention of the "linguistic duality/distinct society" interpretative rule would be enough to impose a "reasonable limit" on Charter rights. But, we were told, this is not the way the courts work. Any court confronted with an argument seeking to justify a limitation on a Charter right on that basis would want to hear evidence about the "linguistic duality/distinct society" and why the proposed limit is not only reasonable but "demonstrably justified".

50. The onus of proof to justify a Charter violation lies on the government. It is not easily discharged, as noted by the Supreme Court of Canada in R. v. Oakes, [1986] 1 SCR 103, per Dickson, C.J.C. at page 138:

Where evidence is required in order to provide the constituent elements of a s. I inquiry, and this will generally be the case, it should be cogent and persuasive and make clear to the court the consequences of imposing or not imposing the limit.

51. The Chief Justice of Canada then laid down a requirement of "proportionality" between the Charter right and the limits sought to be imposed, as follows, at pages 138-140:

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations.

Secondly, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right of freedom in question.

Thirdly, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.

52. A number of witnesses have questioned whether a "reasonable limits" provision, such as that in section 1, is appropriate for a Charter. That is a question that is beyond the mandate of this Committee. Section 1 has been in the Charter since its beginning. If it represents an unsatisfactory limitation on Charter rights, the problem is not created by the 1987 Constitutional Accord. It is an issue that will have to be raised, if at all, in a future round of constitutional negotiations dealing with reform of the Charter.

53. It follows from this that if, as we have concluded, the main concerns about possible negative effects of the "linguistic duality/distinct society" rule of interpretation on Charter rights in general, and gender equality rights in particular, are in fact concerns about the use of these factors in section 1, then they are less directed to the 1987 Constitutional Accord than to the Constitution Act, 1982 and a requirement for a thorough reconsideration of the role of the courts in formulating appropriate limits on Charter rights.

54. Even accepting that the conflict between linguistic duality or distinct society and gender equality rights is more theoretical than real, and more relevant to the use of these factors in a section 1 analysis than to their application to interpret substantive Charter rights, is there nevertheless any justification for including gender equality rights in section 16?

55. As matters now stand, the "linguistic duality/distinct society" rule will not override gender equality rights or vice versa. They will be read together, along with other constitutional values, in any Charter analysis by the court under section 1. Professor Lederman put it this way:

As the late Associate Chief Justice MacKinnon said, in the end the courts have to come back to our own free and democratic society. You learn what you can from looking at other countries, but in the end you have to come back to your own country and you have to make a decision about the values that will best sustain your own free and democratic society. That means that these things, the distinctiveness of the society of French-speaking Canadians in Quebec, the importance of aboriginal rights, the importance of multicultural rights, are assured by these provisions, that they will be in the mix when Charter section I considerations are being weighed. But how it will come out is in the hands of the judges.
(Lederman, 7:35)

56. Professor McWhinney put it more generally:

... the better judges in the end make an overall judgment, they are not worried about the fine print, they say here is the society and here is the law and we have to get a compromise or balance between them.
(McWhinney, submission p. 15)

57. At one stage the Canadian Advisory Council on the Status of Women proposed that the "linguistic duality/distinct society" clause itself be amended so as to include the Canadian Charter of Rights and Freedoms as one of the interpretative principles upon which the Constitution is to be interpreted. This suggestion was met with disapproval by most of the constitutional experts whom we questioned on the matter. They believed it would be redundant to stipulate that the Constitution ought to be interpreted in accordance with itself.

58. The National Association of Women and the Law and the Women's Legal Education Fund proposed adding section 15 and section 28 to the list of provisions in section 16 of the Accord. They took the position that only by adding both of these sections to section 16 of the Accord could sexual equality rights be guaranteed. The National Action Committee on the Status of Women informed us, on the other hand, that because of concerns expressed by Quebec women's groups, they and other major women's groups had now reached a compromise. They were now seeking the inclusion simply of section 28 of the Charter in section 16 of the Accord. La Fédération des femmes du Québec told us that while they saw no need for it, they did not oppose the inclusion of section 28 in section 16 of the Accord.

59. Would these amendments accomplish their intended effect? As the National Association of Women and the Law and LEAF recognized, gender equality rights depend on both section 15 and section 28 of the Charter. Section 28 simply guarantees that Charter rights are to be guaranteed equally to men and women. It does not define the content of those Charter rights. If, therefore, an interpretative provision were able to cut down or even overrule a substantive Charter right, then it would be only the diminished or nonexistent Charter right that men and women were entitled equally to share. On the hypothesis that the "linguistic duality/distinct society" rule of interpretation was capable of supporting a violation of equality rights, then it would be essential for section 16 of the Accord to include at least section 15 of the Charter. Yet, as Maître Yves Fortier told us:

I am afraid, however, that if we add to clause 16 of the Langevin accord a reference to certain substantive provisions of the Charter we will be opening a Pandora's box the effect of which will be to create new and quite considerable uncertainty.

On the other hand, if it were decided to exempt the whole of the Charter from the effect of the distinct society clause, including clause I of the Charter, then that would mean the death of the Meech Lake Accord, period.
(Fortier, 12:84)

Conclusion

60. In a written opinion that was brought to our attention by the Ad Hoc Coalition of Women on the Constitution, Professor Peter Hogg of Osgoode Hall Law School, one of Canada's foremost authorities on constitutional law, stated:

I think it unlikely that the duality and distinct society clauses in section 2 of the Accord would be interpreted as permitting governments to discriminate directly or indirectly against women.

61. Without denying the reasonableness of this assessment, representatives of some women's groups found it insufficient. The Ad Hoc Coalition of Women on the Constitution told us that what they required was a guarantee that the provisions of the 1987 Accord would not "affect" gender equality rights.

62. Under the terms proposed by the 1987 Constitutional Accord neither gender equality rights nor the "linguistic duality/distinct society" rule of interpretation will be given automatic paramountcy in all situations. Neither overrides the other. Neither is automatically subordinate to the other. The courts are entrusted with the task of maintaining a proper balance. The outcome will depend on the particular circumstances of the case. If the proposed interpretative rule on occasion is invoked to justify an alleged infringement of gender equality rights, the courts will be called upon to decide whether the infringement is "demonstrably justified" or not.

63. The various amendments to the 1987 Accord that were presented for consideration, all had the common objective of telling the courts that in all circumstances gender equality rights are to be treated as paramount to the demands of "linguistic duality/distinct society" rule of interpretation.

64. The real issue, it seems to us, is whether the courts should be trusted with the responsibility of striking the proper balance between Charter rights and "reasonable limits". And if the courts are to have their hands tied with respect to certain Charter rights, but not others, where should the line be drawn?

65. The Joint Committee believes that the issue of the reasonable limits, if any, on gender equality rights and other Charter rights should be left to the courts to decide. We cannot foresee all the circumstances in which these values may come into conflict. The decision was taken in 1982, when the Charter was introduced, to leave these questions of balance to be determined by the courts on the facts of a particular case. We believe that this was a sensible solution and that nothing in the 1987 Constitutional Accord relating to the "linguistic duality/distinct society" rule of interpretation calls for a different solution. However, as discussed in our conclusion in Chapter 15, it may well be that the whole issue of the Charter and its structure should be looked at again in light of 5 years of experience with it before the courts and in light of some of the issues raised in these hearings. At that time, in our judgment, the more fundamental concerns of the women's groups with section 1 of the Charter and other matters could appropriately be addressed.


Last HTML revision: 13 November, 1995

William F. Maton