Mr. Speaker, there will be a free vote on Bill C-33. It is my understanding that government practice requires members of the government, ministers, secretaries of state and even parliamentary secretaries, to support a government measure. That is almost axiomatic. However I would want members to know that in voting on this measure I am voting on the merits as I see them.
I have had the advantage of consulting with my constituency association over the last 18 months. We knew a bill might be introduced with a social policy forum. Only a week or 10 days ago I spoke with members of my constituency association who were delegates to the annual convention of the party a month ago. My
vote has been influenced very heavily by the opinions which have been expressed to me. However I believe I can contribute to the debate by addressing some unnecessary confusion in the discussion.
First, there is a false dichotomy between constitutional positions and ethical opinions. Every constitution is an expression of an ethical position, a value choice. It is sometimes forgotten that Jefferson and Madison who inspired so much of contemporary constitutionalism had a commitment to what we today call open society values, and that is a value choice. I believe we should have mutual respect for the positions on both sides of this debate so far as they have been articulated to date.
Part of the problem in our Canadian approach to the issue comes from one of the significant choices made in 1980-82 when we were patriating the Constitution. Many of us advised the government of the day and Mr. Trudeau that they should take as a model for a charter of rights either the American bill of rights, which by legend Madison wrote one Sunday morning, or the great French declaration of the rights of man and the citizen of 1789 and 1791, which is still in the constitution of the fifth republic and the most widely copied of all charters of rights throughout the world. The essence of those charters is that they reduce to a single page the basic principles of a free society.
There is a principle of equality, equality before the law, equal protection of the laws, but it is cast in broad terms without limitations. Perhaps it is regrettable that our charter is very long and the equality principle proceeds to list in extenso examples of equality or categories to which it is applied. It has the effect of cutting down the generality, the sweep and the opening to creative innovation. It may be one of the reasons our courts, including the Supreme Court, have been spasmodic and non-sequential in the development of principles under it.
I understand, therefore, the feeling of people not on a list that they are excluded. It is the old Latin maxim: expression unius est exclusio alterius. If a person is expressed they are in; if they are not expressed they are out. In some ways it distorts the dialectical notion of constitutional development that broad principles are capable of changing in their application according to new societal facts.
I have an interesting letter from the president of the bar association, Gordon Proudfoot, which rejects the step by step, pragmatic, problem oriented development which was the key to human rights development in the United States and in many European countries which were subsequently influenced by it, with the Supreme Court playing a creative role in lock-step with the justice ministry that puts up the test cases. What has occurred there is pragmatic incremental change, not wild experiments in judicial legislation as some might have feared. This would have been a better development for us in Canada, but it is water under the bridge.
We have a lengthy charter that is really a lawyer's charter, not a people's charter. It is hard for lay people to understand. The Canadian Human Rights Act replicates the charter of rights in that sense.
I also had a thoughtful letter from Archbishop Exner of Vancouver. It was quoted by the hon. member opposite. It is thoughtful and helpful. One problem here I think relates to the way the amendment to the human rights act was drafted. The human rights has a wide range, covering some agencies which might be considered private for the purpose of the charter of rights. Beyond that it covers bodies subject to federal regulation such as airlines.
Contrary to general impression, the human rights act is not a general code of human conduct. The amendment makes very clear what is inherent in the Canadian Human Rights Act, unlike the charter, is it is really limited to removing discrimination in employment and the provision of goods and services. That is in the act. It may be enough to make that purpose explicit and make it clear as a matter of legal interpretation.
I would have suggested to the Minister of Justice that rather than put it in the preamble it be put in the substantive part of the act, perhaps section 1. It would make clear as a matter of law that the act applies to prevent discrimination in employment and the provision of goods and services. That as its scope would remove a good deal of the unnecessary fears or questions raised by people of integrity and good faith that somehow this is a licence for a fishing expedition into many other areas of social policy.
It may be that the community will decide in its wisdom that it wishes to move into other areas, but if the purpose of the law is as I have said, and I think that is very clear, it would be better in the language and drafting if it said so.
I do not believe the fears that have been expressed that this may be too widely and too loosely interpreted by unelected judges. I do not think they are warranted on the language as it stands. I simply suggest that to make certainty doubly clear, and there is a Latin maxim for that but I will not quote it, the justice minister might consider at the committee stage of the bill making the change I have suggested.
The open society values implicit in the charter of rights are implicit in this measure too that the Canadian people as whole accept the notion that discrimination in employment based on all the factors mentioned in the amended bill is unacceptable in social terms. That is a good and worthy motive. It is on that basis that I have given my support to the bill.