The New Democratic Party members of the Special Joint Committee on the 1987 Constitutional Accord fully support the report of the Committee.
We believe, however, that prior to a resolution being placed before Parliament, certain logical amendments to the Accord could be accepted by First Ministers without in any way putting the Accord in jeopardy.
Our first amendments concern the North. First Ministers should immediately remove the anomaly of Canadians living in the Territories being denied the opportunity, available to other Canadians, of serving on the Supreme Court of Canada and possibly in the Senate as well. This could be done by adding the words "or territory" after the word "province" in sections 6 and 2 of the Accord relating respectively to section 101C(1), (4), and section 25(1), (2) of the Constitution Act, 1867.
First Ministers should also immediately address the injustice of requiring unanimous provincial approval for the creation of new provinces, a degree of concurrence that was not required for any of the existing provinces. The amendment would delete section 41 (i) in section 9 of the Accord.
Our second amendments concern aboriginal peoples, Canada's first citizens. While the report of the Committee goes some distance in addressing the constitutional process on aboriginal selfgovernment, we would like to see included in the Accord a commitment to hold a First Ministers' Conference to discuss aboriginal rights, in particular selfgovernment. This could be accomplished by amending section 13 of the Accord to add a new subsection (c) to section 50(2) of the Constitution Act, 1982 and renumbering section 50(2)(c), section 50(2)(d).
As well, representatives of the aboriginal peoples and the territorial governments must be assured of full participation. This would require a new section 50(3) to ensure the Prime Minister invites representatives of aboriginal peoples and territorial governments to participate in all matters that affect aboriginal rights.
Our third amendment deals with the equality rights of women.
The equality rights of women in the Canadian Charter of Rights and Freedoms were won a mere five years ago through the collective struggle of thousands of Canadian women. The "taking of 28" had great significance for the women of Canada and section 28 continues to stand as the major statement of our country's constitutional commitment to sexual equality.
During the course of the committee hearings women's organizations raised concerns with respect to the possible adverse effects of the linguistic duality/distinct society interpretation clause on the sexual equality rights guaranteed by the Charter. We heard strong but differing testimony on this question, although all groups addressing it welcomed the recognition of Quebec as a distinct society in the Constitution.
Quebec's largest women's organization, the Fédération des femmes du Québec, (FFQ), stated that the Accord neither expressly nor potentially threatens women's equality in Quebec. On the other hand, several national women's groups said there is a potential risk to women's equality in Canada generally.
Responding to this concern, the largest national women's organization, the National Action Committee on the Status of Women, (NAC), called for the addition of section 28, the sexual equality section of the Charter, to section 16 of the Accord, which already guarantees that neither Canada's multicultural heritage nor aboriginal rights will be affected by section 2 of the Accord.
The FFQ stated they would not oppose NAC's proposal, it being a question of consistency in section 16, rather than a matter of reassurance. The two groups worked together to develop this position and we applaud their efforts.
The New Democratic Party members of the Joint Committee do not believe that the linguistic duality/distinct society interpretation clause abrogates, supersedes or overrides sexual equality rights or any other rights guaranteed by the Charter. Senator Lowell Murray, however, stated that no matter how remote or unlikely an adverse effect of the clause would be with respect to aboriginal rights or our multicultural heritage, sections 25 and 27 were included "out of an abundance of caution". We believe the same abundance of caution should be applied to sexual equality rights that it could be applied without jeopardizing the Accord. Further, section 28 has an interpretative function and is therefore consistent with the other Charter provisions contained in section 16.
Therefore, we recommend that the First Ministers amend section 16 of the Accord by adding section 28 of the Canadian Charter of Rights and Freedoms.
Many of the concerns raised by women constitutional experts, as well as representatives of visible and other minority groups, go far beyond the scope of the 1987 Constitutional Accord.
They arise from judicial interpretations of the Charter to date, the operation of section 1 of the Charter and the relationship of sections 15 and 28 and their combined effect. We would like to underline our strong support for comprehensive Charter review culminating in a First Ministers' Conference, as set out in the report of the Committee.
We also recommend that serious attention be given to section 33 of the Charter, the "non obstante" or "override" clause. Although it has been invoked only infrequently, some of its possible uses to curtail the human rights and civil liberties of Canadians require that the First Ministers should discuss its possible repeal in the upcoming "second round".
We are particularly concerned about section 33's potential consequences for the rights of visible minorities, who have pointed out the dangers it presents to them and to others.
During the hearings multicultural associations emphasized the reality that one-third of Canadians are of neither English nor French origin. These Canadians have also made an outstanding contribution to our development as a nation. Today they are an integral part of the Canadian mosaic.
The linguistic duality of Canada has now been recognized in the Accord as "a fundamental characteristic of Canada". The report of the Committee states that the ethnocultural diversity of Canada deserves further study. We would go further than this, urging early consideration of the ethnocultural reality of Canada as a fundamental characteristic of our nation.
Finally, we underline the recommendation of many who testified that the process of constitutional review and change is itself in need of review and change.
We reiterate the recommendation in the report of the Committee that there must be a Standing Joint Committee of the Senate and the House of Commons on Constitutional Reform which would hold hearings before as well as after First Ministers' Conferences, to facilitate the widest possible public participation in constitutional renewal, and we would urge appropriate links with provincial legislative committees sharing a similar mandate.
William F. Maton