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Charter 20th anniversary

Senator Joyal: Honourable senators, 20 years ago today, Canada became a sovereign country. Twenty years ago today, Canada became a country whose basic tenet would be to recognize and guarantee the same measure of freedom for every individual, regardless of origin, race, language, differences. But this new sovereignty would first serve individuals. The winners of this initiative 20 years ago would be Canadians themselves. The birth of a new Canada would fundamentally alter the kind of society that we were going to be called upon to build in the future. This peaceful and humanist revolution did not come about by chance.

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It came about, I recall, following the Quebec referendum of May 20, 1980, and the initiative taken by Prime Minister Trudeau to patriate the Canadian Constitution, enshrining a Charter of Rights and Freedoms in it.

Canadians were right. Twenty years later, the Canadian Charter of Rights and Freedoms has become the founding document of modern-day Canada. So much so that we wonder how we could live without the protection of rights and freedoms that are guaranteed in the Canadian Charter of Rights and Freedoms. What would be of the recognition of Aboriginal peoples, the Metis in particular, if they did not have the protection of their treaty and ancestral rights granted under section 45? What would be of the equality of men and women today, were it not for the guarantee contained in section 28? And what would be the situation of the rights of anglophone and francophone minorities to live and grow in their own language, and to run their own schools? Yes, honourable senators, Canadians were right. They saw in the Charter the essential element of what it means to be Canadian. The Charter has made a difference in Canada. There is a direct link between the effectiveness of this Charter and the responsibility of the highest courts in the land to ensure that it is respected and that wrongs be righted in cases where the Charter has been violated.

Take the bold ruling by the Supreme Court in the case regarding official languages in Manitoba, a ruling that invalidated all Manitoba statutes since 1890. Canadians were right. Because of the fact that the courts have the ultimate power and responsibility to ensure that their rights are respected effectively, Canadians value the Charter and recognize its real value.

Quebecers, as much as other Canadians, have come to see the Charter and the courts as their best defence against the excesses of politicians, who are always influenced by the majority view at any given time.

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The Charter, as was said earlier, is a living tree. That expression was taken from the judgment of Justice Dickson in one of the first cases interpreting the Charter, the Hunter v. Southam case in Manitoba. Justice Dickson restated essentially that which Viscount Sankey had said in 1929, when he interpreted the famous Persons Case.

What did Viscount Sankey say? He said:

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.

Those are the same words used by Justice Dickson in 1985, in one of the first Charter cases in Manitoba. Senator Stratton certainly remembers the famous case of Hunter vs. Southam. Justice Dickson said that our Charter is a living tree. Being a living tree, it is capable of growth and expansion within its natural limit. In other words, the Charter is essentially the expression of our own rights that live and grow in a country that fundamentally allows a culture of rights.

We as Canadians are just at the beginning of a human adventure that is unique because it is based on the respect of the dignity of every person, not because that person is a Canadian citizen. This differentiates us fundamentally from the American Bill of Rights that has been quoted here. Americans are protected because they are American, because they belong to a country. Canadians are protected not because they belong to a country but because they are human beings.

Honourable senators, this is a very fundamental difference between our two countries. That is why we are described as being a humanist society in Canada. Over and above any political distinction of nationality, our first recognition are the rights and freedoms of a person. This is the living tree that Justice Dickson described in 1985.

Honourable senators will understand that when many of us start thinking and reflecting upon the Charter and the patriation adventure, many memorable souvenirs are brought back in our memory. I remember very well Senator Arthur Tremblay and the late Senator Maurice Lamontagne, who along with Senator Austin sat for more than 300 hours for a total number of 106 meetings, always under television spotlights, listening to more than 314 witnesses. Among them were premiers of four provinces and the two territories and an array of representatives of Canadians coming from all over the country. The most compelling witnesses were representatives of the Aboriginal people of Canada.

Honourable senators, it was the first time in Canadian history that Aboriginal people were present as witnesses in front of the Canadian Parliament. It was the first time that we had received representatives of the Inuit people and from the Indian treaty groups.

For the first time, we received representatives of Indian people who had never been recognized in Canada — the Metis people. They had not been recognized as Indian or as descendants of Indo-European people either. They fell in between, into a kind ofno man's land with no rights. Today, we have among us a representative of the Metis people. We would never think that the Metis people should not be considered as full participants in thegreat adventure of defining Aboriginal rights.

We received a representative of the National Action Committee on the Status Of Women, coming to plead to get the recognition that, as Senator Beaudoin said, is one of the best in the world for the recognition of the status of the equality of women.

Honourable senators, we spent 300 hours in meetings almost cloistered like Trappists in a monastery. We came out of that marathon session with 58 amendments to the original draft of the Charter, including amendments recognizing the treaty rights of the Aboriginal people and the Metis, and the equality of status of men and women over and above everything in our country. The amendments recognized fundamentally all those minorities that had been excluded in our history.

The Jewish people who had been barred from immigrating to Canada during the last world war were recognized. The descendants of the 20,000 Japanese people — 75 per cent of whom were born in Canada — who were interned in the concentration camps during the last world war, were recognized.

Those Canadians came to tell us that if we were thinking of establishing the basis of a more respectable society for rights and freedoms, think of those who have been left aside during the course of our centennial history.

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When we reflect upon that initiative, it is a living adventure for which we do not see the boundaries. The Quebec government of the day did not sign the patriation package, as we called it at the time. There is not a single Quebecer or single Canadian who does not have to question himself or herself about the outcome of that. It was not because the patriation package was devised against the province and singularly against Quebec. In fact, the package,
20 years ago, contained many provisions to address specific concerns expressed by Quebecers.

The provisions of the Constitution provided that if there were to be any constitutional amendment to education and culture — that, of course, being of specific interest to Quebec — the Quebec government would be financially compensated.

There was recognition of the full control of the provinces over natural resources. If there is a province where natural resources and, singularly, energy is of paramount importance, it is in Quebec.

There was in the same package the recognition that three Quebec judges would be appointed to the Supreme Court of Canada and would be entrenched forever, without the capacity for a federal government to amend the Supreme Court Act. The package gave to Quebec a veto on the three judges of the Supreme Court.

There was in the same package recognition of linguistic rights and the Canada clause — that is, the right of a person who has been educated in English in Canada to be educated in English and in French and the privilege given to the Quebec government to expand, when it so wishes, to other groups at the moment that the Quebec society feels secure enough to move in that direction.

There were provisions in the package to constitutionally entrench the equalization payments, the obligation that the federal government has to pay the provinces, those who do not have a comparable level of resources, to match the richest province. Certainly Quebec profited from that. Indeed,
48.5 per cent of the equalization payments are given to the Quebec government, which represented more than $5 billion last year. Many provisions in the original package were devised to address specifically the Quebec government's concerns.

History tells us that for political reasons the Quebec government and, very legitimately, some members of the National Assembly and some members of the Liberal Party of Quebec thought that the package should not have proceeded. It is always the same problem: You are damned if you do and damned if you do not.

Honourable senators, there must be a starting point whereby the legitimate request of the Quebec government, which is to maintain its capacity to protect the language and to protect the specific need that the province has in maintaining its identity, should be addressed.

Honourable senators, this is what is left on the drafting table.

The Hon. the Speaker pro tempore: Honourable Senator Joyal, I am sorry to interrupt, but your time has elapsed.

Is leave granted?

Hon. Senators: Agreed.

Senator Joyal: Thank you, honourable senators. I will be brief.

The second challenge deals with judicial activism, which seems to be a buzzword today. When there is a decision that is not liked by a majority of public opinion, it is seen as judicial activism. I think that politicians in Canada have a responsibility. When a decision of the court specifically raises an issue that is not popular among the majority, the government must seek redress of that wrongdoing.

Some provincial governmentsadopt remedial legislation, but they like to title the legislation "An Act to Amend Certain Statutes" as a result of the Supreme Court of Canada decision in M. v. H. In other words, governments shift the responsibility of unpopular decisions to the realm of the Supreme Court. There are situations that have to be addressed by politicians, and there is the fact that we seem still to wrestle with constitutional reform in Canada. Since we are in a position of not addressing, on a constitutional basis, the rights of the Aboriginal people, it is the court that defines, through various groups of cases, one case after the other, what is meant by self-government.

The fact is that we seem unable to assume our responsibility, to give way to the growth, to the living tree that is the Charter. In the case of the Aboriginal people, that responsibility has been left to the courts. Then, when the courts define the right, we say, "Well, that is judicial activism." I feel that judicial activism is our own responsibility when we study legislation. Honourable senators know very well that for every piece of legislation that comes in front of this house, which is the house responsible for the federal principle and for balancing minority and linguistic rights, we have a special duty to test that legislation to the scale of the Charter of Rights and Freedoms and to the scale of other rights included in the other instruments that have been mentioned during our debate today. This is one of the other challenges that we will have to address on a daily basis, especially on this day, when we celebrate the full sovereignty of Canada and the rights and freedoms of each and every Canadian.