Mr. Fairweather, what I would like to do from looking at materials that you have provided earlier, is take you to your concern of Section I of the proposed resolution. At the bottom of your presentation as well as in the accompanying documents you stress your concern about Section l. I would like to ask you from your perspective if the clause remains essentially in the form it now appears what are the technical consequences of that clause in relation to the protection of rights and freedoms? Mr. Fairweather: They are so serious that I could not imagine this Committee letting Section l go unamended, That section as drafted would challenge, in my opinion, the rest of the charter, and I suspect somebody is going to be getting an amendment. It is, as I said, turning our backs on the international and national jurisprudence, and it is very broadly drafted. Why we do not use the language that is well accepted now and has been ratified by Canada, for the life of me I have no idea. This is a strong statement but I have strong feelings. I am absolutely committed to the entrenchment and the patriation and the goals. They are wonderful goals for this country at last but why not go for something better. Mr. Epp: From your experience as a Commissioner of the Human Rights Commission, could you give us examples of if this proposed resolution had in fact been in effect with the prohibitions in Section 1, can you give us some specific examples of the restrictions it would have given or caused both to rights and freedoms and also to the Commission? Mr. Fairweather: Yes. One was given last night, if I know correctly, by the Minister of Justice for Canada. It might be that generally accepted standards in this country for mandatory retirement, the anti-discrimination part having to do with age, could be challenged and rendered meaningless as a reform mechanism, because the generally accepted standards now are quite illiberal, if I may use that word in this place. [Page 12] The generally accepted standards for Canada are to push people out at certain ages, I greeted this charter with excitement when I saw that the Government of Canada had included age, but when I see the language of Section 1, I wonder. Another message that surely cannot be forgotten is that the generally accepted standards in Canada in 1940 and 1941 were to take Canadians whose offence was that they were of Japanese origin. In the Wellington Street Archives last night while you were doing something else I went to the festival of the 100th anniversary of the Chinese in Canada. They came to build the railway and I am as shocked as I know senators and members are to remember that people who are enshrined and rightly, in our history were perpetrators of the Chinese Exclusion Act, the Chinese $50 a head tax act. The Chinese people in this country were not allowed to vote in a province I think until after the Second World War. It was Mr. Diefenbaker who gave the Native peoples the right to vote in the late 1950s. I am not saying that a government that follows this one would, but it could, because those were I guess until reform came the accepted standards. This document is to be entrenched, enshrined, as a statement to the people who have their loyalty to Canada. Mr. Epp: Do I understand you correctly, sir, that if the document before us were to be enshrined, entrenched, that an incident like Canadians of Japanese origin and the removal of these people from various parts of Canada, their prohibition of freedoms at that time, that in fact that kind of action would still be possible under the charter in its present form. Mr. Fairweather: I think, Mr. Epp, my duty is to warn you, and I have given some examples, age and these other offensive matters could be put in jeopardy. I am not saying they will but they could. I think most of this charter is really a superb piece of work, but I cannot see why Canada wants to turn its back on accepted international standards and language that has been adjudicated. That is why I am being a bit fussy. It clouds the rest of a noble document.
§1 of the Charter of Rights and Freedoms. Referenced in Adam Dodek, The Charter Debates (Toronto: University of Toronto Press, 2018), pp. 89-90.



