Evidence of meeting #33 for Veterans Affairs in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was ombudsman.
A recording is available from Parliament.
9:50 a.m.
Liberal
9:50 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
Well, I do, and it was spoken of in great and large terms, because “the Bill of Rights” is a phrase in American legal and political culture that has sacrosanct standing. We have the Magna Carta, and we have the Bill of Rights Act, 1689, in Britain, that's part of our Constitution in Canada. So it's a certain baguette magique, a bill of rights, right? But, hey, it's just wrapping on the package.
The courts turned up and they didn't find Mr. Diefenbaker's bill of rights to have quite the impact he thought it should have had. There was only one case where it had any impact, and then it went into desuetude, as it were, and it really didn't amount to much. That's why Trudeau, in effect, came along years later with a constitutional bill of rights, if you might call it that.
So you can call it a bill of rights, but that's not going to tell a court that all of a sudden they have to salute because we have something holy here. They're going to look at the language that's used. They're going to look at the language in all four corners of the bill, the legislation, and decide, what is Parliament legislating here?
You're right, and I think Melanie would confirm, that you could, by way of a “whereas”, indicate how the later provisions are to be read. But then they have to interpret the “whereas”, too, so it may not be read as you like.
9:50 a.m.
Liberal
Brent St. Denis Liberal Algoma—Manitoulin—Kapuskasing, ON
That's exactly what I was getting at. Thank you.
Did Ms. Mortensen want to add something to that?
9:50 a.m.
Parliamentary Counsel (Legal), House of Commons
Yes. Thank you, Mr. Chair.
I'll be brief, which is sometimes difficult for me.
I saw this language today on my way here, and I found it musing. This is from John Mark Keyes's Executive Legislation: Delegated Law Making by the Executive Branch: “Languages, and the dictionaries and grammars that describe it, are not considered to have legal effect.” I found that interesting out of context, because language as such does not have legal effect; it depends on the source and where you find that language.
“Bill of rights” as a term, if you really think about it, is meant to just say some legislation that's giving effect to rights. Rights can be found in different legislation; if you look at the Privacy Act, for instance, you'll see in the scope and application part that rights are set out, and the right is the right of the individual to have the government treat the personal information of the individual in a way that's set out in the legislation; here too you could have the bill of rights, if you wanted to call it that, of veterans set out in the scope and application section of whichever act is appropriate for the scheme you want to set out.
Maybe it would be appropriate in the Department of Veterans Affairs Act. Maybe it would be appropriate in the act that is now being called the Veterans Charter. I think it can be a bit confusing, because we have the Charter of Rights and Freedoms, which is a charter that sets out certain rights and freedoms in a constitutional setting; by contrast, what we're calling the Veterans Charter is an act that sets out a package of programs and so on. If you intend that package of programs to be delivered in a manner that meets certain standards, it may be appropriate for that act to have the scope or interpretation section saying that this is the bill of rights we intend the veterans to be able to have in a way that's enforceable by our ombudsman. If you put it in the preamble, though, it may have less weight, because it's more for the court to determine how that's interpreted. If it's within the section of the act, then it has more effect.
9:55 a.m.
Conservative
The Chair Conservative Rob Anders
At that, I'm going to ask everybody to stew on the wise and sage advice they've received today with regard to the legalities of all this.
I thank our witnesses for their presentations.
Now we adjourn to go and hear what all the various parties have to say in the House on Vimy.
The meeting is adjourned.