Document Information

Date: 1981-01-28
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 47 (28 January 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 47

Wednesday, January 28, 1981

Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.

Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the

Constitution of Canada

RESPECTING:

The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980

APPEARING:

The Honourable Jean Chrétien,
Minister of Justice and Attorney
General of Canada

WITNESSES:

(See back cover)

First Session of the
Thirty-second Parliament, 1980-81

SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
OF CANADA

Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.

Representing the Senate:

Senators:

Asselin
Austin
Bird
Goldenberg
Lucier
Roblin
Rousseau
Tremblay
Wood—10

Representing the House of Commons:

Messrs.

Bockstael
Corbin
Crombie
Epp
Fraser
Gimaiel
Gingras
Hawkes
Irwin
Lapierre
McGrath
Nystrom
Robinson (Burnaby)
Tobin—15

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

Pursuant to S.O. 65(4)(b) of the House of Commons:

On Wednesday, January 28, 1981:

Mr. Gingras replaced Mr. Bockstael;
Mr. Hawkes replaced Mr. Beatty;
Mr. Gendron replaced Mr. Mackasey;
Mr. Marceau replaced Mr. Gendron;
Gimaiel replaced Miss Campbell (South West Nova);
stael replaced Mr. Marceau.

[Page 3]

Pursuant to an order of the Senate adopted November 5, 1980:

On Wednesday, January 28, 1981:

Senator Goldenberg replaced Senator Lapointe;
Senator Connolly replaced Senator Wood;
Senator Bird replaced Senator Petten;
Senator Wood replaced Senator Connolly.

[Page 4]

MINUTES OF PROCEEDINGS

WEDNESDAY, JANUARY 28, 1981
(84)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 3:45 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin, Austin, Connolly, Goldenberg, Hays, Lucier, Petten, Roblin, Rousseau and Tremblay.

Representing the House of Commons: Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Fraser, Gendron, Gingras, Hawkes, Irwin, Joyal, Lapierre, Mackasey, Marceau, McGrath, Nystrom, Robinson (Burnaby), and Tobin.

Other Member present: Mr. Allmand.

In attendance: From the Research Branch of the Library of Parliament: Messrs. John McDonough and Hugh Finsten, Researchers.

Appearing: The Honourable Jean Chrétien, Minister of Justice and Attorney General of Canada.

Witnesses: From the Department of Justice: Mr. Roger Tassé, Deputy Minister, Dr. B. L. Strayer, Assistant Deputy Minister, Public Law and Mr. E. G. Ewaschuk, Director, Criminal Law Amendments Section.

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)

The Committee resumed consideration of the motion of Mr. Robinson (Burnaby),—That Clause 10 be amended by adding after paragraph (c) the following:

“(d) to protection against self-crimination from the moment of arrest and the right to be informed of that right.”

Mr. Fraser moved,—That this Committee adjourn until those members of this Committee engaged in the debate in the House of Commons on a question of privilege arising from a breach of undertaking given by the government in this Committee is completed.

After debate, by unanimous consent, the motion was withdrawn.

The Committee resumed consideration of the motion of Mr. Robinson (Burnaby),—That Clause 10 be amended by adding after paragraph (c) the following:

“(d) to protection against self-crimination from the moment of arrest and the right to be informed of that right.”

[Page 5]

After debate, the question being put on the amendment, it was negatived on the following show of hands: YEAS: 2; NAYS: 18.

Clause 10, as amended, carried.

On Clause 11 of the proposed Constitution Act, 1980

Mr. Irwin moved,—That the English version of Clause 11 of the proposed Constitution Act, 1980 be amended by striking out line 7 on page 5 and substituting the following:

“11. Any person charged with an offence has”

After debate, the amendment was agreed to.

Mr. Irwin moved,—That Clause 11 of the proposed Constitution Act, 1980 be amended by striking out lines 9 and 10 on page 5 and substituting the following:

“(a) to be informed without unreasonable delay of the specific offence;”

After debate, the question being put on the amendment, it was agreed to on tbe following show of hands: YEAS: 21; NAYS: 2.

Mr. Irwin moved,—That Clause 11 of the proposed Constitution Act, 1980 be amended by

(a) adding immediately after line 11 on page 5 the following:

“(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;”; and

(b) relettering the subsequent paragraphs accordingly.

After debate, the question being put on the amendment, it was agreed to.

Mr. Robinson (Burnaby) moved,—That Clause 11 be amended by adding at the end of the new paragraph (c) the following:

“or to confess guilt;”

After debate, the question being put on the amendment, it was negatived on the following show of hands: YEAS: 2; NAYS: 21.

At 6:05 o’clock p.m., the Committee adjourned to the call of the Chair.

EVENING SITTING
(85)

The Special Joint Committee on the Constitution of Canada met this day at 8:15 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin, Austin, Bird, Goldenberg, Hays, Lucier, Roblin, Rousseau, Tremblay and Wood.

Representing the House of Commons: Messrs. Bockstael, Corbin, Crombie, Epp, Fraser, Gimaiel, Gingras, Hawkes, Irwin, Joyal, Lapierre, McGrath, Nystrom, Robinson (Burnaby), and Tobin.

In attendance: From the Research Branch of the Library of Parliament: Messrs. John McDonough and Hugh Finsten, Researchers.

[Page 6]

Appearing: The Honourable Jean Chrétien, Minister of Justice and Attorney General of Canada.

Witnesses: From the Department of Justice: Mr. Roger Tassé, Deputy Minister, Dr. B. L. Strayer, Assistant Deputy Minister, Public Law and Mr. E. G. Ewaschuck, Director, Criminal Law Amendments Section.

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)

The Committee resumed consideration of Clause 11 of the proposed Constitution Act, 1980.

Mr. Irwin moved,—That Clause 11 of the proposed Constitution Act, 1980 be amended by striking out lines 16 to 18 on page 5 and substituting the following:

“(d) not to be denied reasonable bail without just cause;”

After debate, the amendment was agreed to.

Mr. Irwin moved,—That Clause 11 of the proposed Constitution Act, 1980 be amended by

(a) adding immediately after line 18 on page 5 the following:

“(e) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;”; and

(b) relettering the subsequent paragraphs accordingly.

Mr. Robinson (Burnaby) moved,—That the proposed amendment to Clause 11 of the proposed Constitution Act, 1980 be amended by striking out the words “five years:· in the proposed new paragraph 11 (e) and substituting the following:

“two years”

After debate, the subamendment was negatived on the following show of hands: YEAS: 1; NAYS: 19.

The question being put on the amendment, it was agreed to.

Mr. Epp moved,—That Clause 11 of the proposed Constitution Act, 1980 be amended by striking out lines 19 to 22 on page 5 and substituting the following:

“(e) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;”

After debate, the question being put on the amendment, it was agreed to.

Mr. Corbin moved,—That Clause 11 of the proposed Constitution Act, 1980 be amended by striking out lines 23 to 25 on page 5 and substituting the following:

“(f) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and”

[Page 7]

Mr. Robinson (Burnaby) moved,—That the proposed amendment to Clause 11 of the proposed Constitution Act, 1980 be amended by striking out the words “found guilty and punished for the offence” in the amendment to paragraph 11 (f) and substituting the following:

“found guilty of and punished for any act or omission constituting the offence;”

After debate, the question being put on the subamendment, it was negatived on the show of hands: YEAS: 1; NAYS: 19.

The question being put on the amendment, it was agreed to.

Mr. Irwin moved,—That the English version of Clause 11 of the proposed Constitution Act, 1980 be amended by striking out lines 26 to 30 on page 5 and substituting the following:

“(g) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.”

Mr. Robinson (Burnaby) moved—That the proposed amendment to Clause 11 of the proposed Constitution Act, 1980 be amended by striking out the words “between the time of commission and the time of sentencing” in the amendment to paragraph 11 (g) and substituting the following:

“after the time of commission;”

After debate, the question being put on the subamendment, it was negatived on the following show of hands: YEAS: 1; NAYS: 14.

The question being put on the amendment, it was agreed to. Mr. Robinson (Burnaby) moved,-That Clause 11 of the proposed Constitution Act, 1980 be amended by

(a) striking out the word “and” at the end of paragraph 11 (f) on page 5 and adding immediately after line 30 on page 5 the following:

“(h) to be confronted with prosecution witnesses; and”; and

(b) adding immediately thereafter the following paragraph:

“(i) to have compulsory process to obtain witnesses.”

After debate, the question being put on the amendment, it was negatived on the following show of hands: YEAS: 1; NAYS: 14.

Clause 11, as amended, carried.

On Clause 12 of the proposed Constitution Act, 1980

Mr. Robinson (Burnaby) moved,—That Clause 12 of the proposed Constitution Act, 1980 be amended by striking out line 32 on page 5 and substituting the following: “jected to any cruel, inhuman or degrading treatment or”

After debate, the question being put on the amendment, it was negatived on the show of hands: YEAS: 2; NAYS: 14.

Clause 12 carried.

On Clause 13 of the proposed Constitution Act, 1980

[Page 8]

Mr. Irwin moved,—That Clause 13 of the proposed Constitution Act, 1980 be amended by striking out lines 34 to 39 on page 5 and substituting the following:

“13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.”

After debate, the question being put on the amendment, it was agreed to on the following show of hands: YEAS: 14; NAYS: 6.

Clause 13, as amended, carried.

On Clause 14 of the proposed Constitution Act, 1980

Mr. Robinson (Burnaby) moved,-That Clause 14 of the proposed Constitution Act, 1980 be amended by striking out lines 40 to 44 on page 5 and substituting the following:

“14. Every person has the right to the assistance of an interpreter in any proceedings before a court, tribunal, commission, board or other authority in which the person is involved or is a party or witness if the person does not understand or speak the language in which the proceedings are conducted, or is subject to a hearing impairment.”

After debate, the question being put on the amendment, it was negatived on the following show of hands: YEAS: 2; NAYS: 14.

Mr. McGrath moved,—That Clause 14 of the proposed Constitution Act, 1980 be amended by striking out line 43 on page 5 and substituting the following:

“ed or who is deaf has the right to the assistance of an”.

After debate, the question being put on the amendment, it was agreed to.

Clause 14, as amended, carried.

On Clause 15 of the proposed Constitution Act, 1980

Mr. Corbin moved,—That the heading preceding Clause 15 and su bclause 15(1) of the proposed Constitution Act, 1980 be amended by striking out the heading immediately preceding line 1 and lines 1 to 5 on page 6 and substituting the following:

“Equality Rights

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex or age.”

Mr. Robinson (Burnaby) moved,—That the proposed amendment to subclause 15(1) of the proposed Constitution Act, 1980 be amended by

(a) striking out everything immediately following the words “Every individual is equal” and substituting the following:

“in, before and under the law and has the right to equal protection and equal benefit of the law, and to access to employment, accommodation and public services, without

[Page 9]

unreasonable distinction on grounds including sex, race, national or ethnic origin, colour, religion or age.”;

(b) adding to subclause 15(1) the following: “physical or mental disability,”

(c) adding to subclause 15(1) the following: “marital status,”;

(d) adding to subclause 15(1) the following: “sexual orientation,”;

(e) adding to subclause 15(1) the following: “political belief,”;

(f) adding to subclause 15(1) the following: “lack of means.”; and

(g) moving the word “or” so that it appears immediately after the penultimate proscribed ground of discrimination.

Mr. Crombie moved,—That the proposed amendment to Clause 15 of the proposed Constitution Act, 1980 be amended by striking out the words “or age” in subclause 15(1) thereof and substituting therefor the following words:

“age or mental or physical disability.”

The question being put on the subamendment of Mr. Crombie, it was agreed to.

After debate, on the subamendment of Mr. Robinson (Burnaby), at 10:26 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

[Page 10]

EVIDENCE

(Recorded by Electronic Apparatus)

Wednesday, January 28, 1981

[Text]

The Joint Chairman (Mr. Joyal): May I invite the honourable members to take their seats.

On Clause 10—Arrest or detention.

The Joint Chairman (Mr. Joyal): We resume consideration of Clause 10 of the proposed resolution on a motion introduced by Mr. Robinson that reads:

That Clause 10 be amended by adding after paragraph (c) the following:

(d) To protection against self-crimination from the moment of arrest and the right to be informed of that right.

Il serait proposé:

Que l’article 10 du projet de Loi constitutionnelle de 1980 soit modifié par adjonction après l’alinéa c), de ce qui suit:

«d) dès le moment de son arrestation, de ne pas s’incriminer et d’être in forme de ce droit.»

The Honourable John Fraser.

Mr. Fraser: Point of order, Mr. Chairman. As some honourable members of this Committee know, there is a debate going on in the House of Commons at the moment which involves a question of privilege which has arisen out of this Committee and that question of privilege revolves around the commitment made by the Solicitor General as the Acting Minister of Justice, and that commitment, as honourable members know, is that an amendment on the part of the Conservative Party here to include property rights in the Charter of Rights would be accepted.

That commitment was changed, or broken, depending on how you want to look at it.

That matter is being debated in the House at the moment; the hon. James McGrath is presently debating and the hon. Jake Epp, who is our Chairman, is waiting to go on.

Mr. Chairman, I have to say that I am extremely reluctant that this Committee proceed without either our Chairman or one of our colleagues. I frankly think that the matter that is being debated in the House is of very grave importance to the conduct of Parliament and I, for one am not prepared, unless I am absolutely forced to, to go ahead with the proceedings this afternoon until that debate closes.

Mr. Chairman, I do not want to put you or your Joint Chairman in any position of personal difficulty, but I want to say that I am asking this Committee, and I am asking through you, Mr. Chairman, to agree that it ought not to proceed until the Chairman of our Committee can return and until the hon. James McGrath can return. In view of the fact that what is going on in the House of Commons involves something that has arisen out of this Committee and has risen out of an

[Page 11]

undertaking given by the government which was withdrawn, that, I do not think, is an unreasonable request.

I have to say, Mr. Chairman, through you to members of this committee, to continue at the moment when a matter of such importance to the concept of trust and goodwill that must prevail in the parliamentary process is taking place in the Chamber of the House of Commons would be wrong, and so far as I am concerned, Mr. Chairman, I do not think it proper that the committee proceed without our colleagues, and I do not think that the work of this committee is going to be that seriously affected by adjourning until our colleagues can join us.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable John Fraser. The Chair, for the very suggestion at this point that you are proposing, is in the hands of the honourable members of this committee, because so far as the Chair is concerned there is already an agenda that has been accepted by this committee yesterday, Wednesday, January 28, 1981, that this committee sit from 3.30 p.m. to 6 o’clock and you will remember very well that last Friday the Chair had to take a decision on the very same request from an honourable member of his party that the decision of the committee should be to continue the meeting.

Now the Chair has to decide on a decision to adjourn the meeting and I will only repeat what I said to the honourable Perrin Beatty to the very question that was put to the Chair yesterday, what procedure to be followed to either adjourn or postpone or extend a sitting of this committee, and there are two ways to do so.

The first one is if the Chair sees unanimous consent around the table, then it is easy to rule, all honourable members agreeing that the Chair has no other choice than to adjourn or to continue the sitting; and if there is no consensus then there is another way, which is to introduce a motion, a proper motion, and that motion might be debated. So at this point the Chair is ready certainly to hear the representative of the other party to see if there is a consensus, and if there is no consensus, then the Chair will have to invite you to move a motion.

Honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, there is indeed a debate in the House of Commons at the moment on a point of privilege raised, quite within his rights, by Mr. McGrath. However, it is rather wrong to think that every time there is a debate in the House of Commons, flowing out of something in a committee, that the committee must suspend its operations.

I would like to be listening to that debate, but my responsibility is here. No less than six members of the Conservative Party, despite the debate, are present. So it seems, much as I respect the contributions of Mr. Epp and Mr. McGrath and the input they have from that side of the table, certainly six members and two replacements can do adequate justice as we have many times in the past few weeks substituted for each other.

I realize that maybe Mr. Epp or Mr. McGrath may not be replaced, and I am not being sarcastic, because of their great knowledge of the subject, but it is rather naive and wrong to think that the committee must suspend as to such time as the House gets finished with that particular point of privilege, whether indeed there is one or not.

[Page 12]

I think as common courtesy, we would not want to call a vote while the Opposition members were short a member; I think we should extend that courtesy; but I think by the same token we should proceed as scheduled and certainly all members and all parties have had an opportunity to keep their quorum up.

If the point of privilege in the House requires the attendance, and it could very well require the attendance of Mr. Epp and Mr. McGrath, fortunately there are methods and procedurs available to replace them at this committee. I am not prepared as an individual to give my consent to any request that we terminate or suspend, either for a fixed period or indefinitely, the work of this committee. I think we must go on.

The Joint Chairman (Mr. Joyal): Honourable David Crombie.

Mr. Crombie: Mr. Chairman, I gather that Mr. Mackasey was speaking for the government side that there is no consensus, is that so?

Mr. Mackasey: I made it very clear I spoke for myself and I would imagine my vote is very important if you want unanimous consent.

Mr. Crombie: We should have denationalized him before. Mr. Chairman, I only asked that because you had asked the government side to speak. Mr. Mackasey was at great pains to indicate that he was speaking only for himself so quite obviously the government side did not accede to your request for an expression of their collective thought.

Before I continue my comments, my contribution, Mr. Chairman, I want to find out from Mr. Irwin or whoever speaks for the government, what their view is, and not merely Mr. Mackasey’s.

[Translation]

Mr. Corbin: Mr. Chairman, on a point of order.

The Joint Chairman (Mr. Joyal): Mr. Corbin, on a point of order.

Mr. Corbin: Mr. Chairman, Mr. Bryce Mackasey is our spokesman in any discussion on procedure issues.

Mr. Mackasey has spoken on behalf of the members of this side.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Corbin.

Mr. Nystrom.

[Text]

Mr. Nystrom: To save time, I think, Mr. Chairman, you have ruled that it takes unanimous consent. Obviously, we do not have that. I would then like to pick up an idea suggested by someone that we at least extend the courtesy to Mr. Epp and Mr. McGrath of not taking any votes on any clauses of this resolution until they return; perhaps start the debate, but not take any vote, if indeed your ruling is unanimous consent is needed to change the order.

The Joint Chairman (Mr. Joyal): I have no reason at this point, Mr. Nystrom, why I should change my ruling. The rules

[Page 13]

of procedure are very clear and I have no other choice, and I ask for your co-operation in that respect, 1 have no other choice but to apply the rules. I do not apply the rules to fit the Chair or to fit an hon. member, I have to apply the rules as the rules are.

Mr. Nystrom: I am sorry, Mr. Chairman, that is exactly what I meant. If indeed the rule is unanimous consent, then to save time let us …

The Joint Chairman (Mr. Joyal): Or, as I said, and I suggest very humbly to the honourable John Fraser to introduce a motion, that would be another way of attempting to get a majority to share his views to adjourn at that point.

Honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

The only reason I asked what the government’s view was is because it was not clear to me that Mr. Mackasey was speaking for the government because he said he was not, and I did not know that Mr. Corbin did, so I was looking for some signal, at your request.

I would like to move, Mr. Chairman—well, let me correct that. Mr. Fraser has a comment he would like to make.

An hon. Member: Who speaks for the Conservative Party?

Mr. Crombie: Mr. Fraser, of course, speaks for the Conservative Party.

The Joint Chairman (Mr. Joyal): So I will invite, then, the honourable John Fraser to move.

Mr. Fraser: Well, Mr. Chairman, I accept the invitation of my colleague to speak for the party. I hope that after I have spoken that I have the same enthusiastic support.

An hon. Member: You have ours anyway.

Mr. Fraser: I do not count on much support from the other side of the table, Mr. Chairman.

Mr. Chairman, I move that this committee adjourn until those members of this committee who are presently engaged in the debate in the House of Commons on the question of privilege arising from a breech of undertaking given by the Government in this committee is completed. Now, that is the motion, Mr. Chairman,and I understand from what you said that that motion is open to debate.

The Joint Chairman (Mr. Joyal): Yes, Honourable John Fraser, that motion is debatable because you have proposed a motion to adjourn and I understand from what you have just read that there is a condition and so far as there is a condition or there is a limitation on it I have to accept that there is a debate on the proposed motion.

Honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

I am not sure there is going to be a great amount of difference in terms of the actual work of the committee between a motion from Mr. Fraser, the motion which I accept and hope the committee will, and the proposition that we extend the courtesy of no voting until we have a full complement of the traditional committee.

[Page 14]

This is for a very good reason, Mr. Chairman. We are now into clause-by-clause, we are not hearing deputations, and it seems to me that the normal substitution that we have gone through, if there is a question of privilege in the House we would ordinarily accept that those particular members might not be here but there would be members representing the political parties. We are not now hearing deputations and testimony from witnesses, we are dealing with clause-by-clause and Mr. Epp and Mr. McGrath have been here throughout, they have contributions to make on the specific matters that are before us, the particular clauses. They not only would like to be here for the vote, but they would like to introduce amendments in relation to those votes.

It seems to me that is why Mr. Fraser’s motion makes the most sense. Why do we not adjourn? The question of privilege is not going to take a very long time but if we adjourn we will at least allow Mr. Epp and Mr. McGrath to be able to make their own contribution to the matters before us as well as to vote.

Mr. Mackasey has indicated that we cannot every time there is a question of privilege in the House and I would agree with that, but we had one yesterday and it was not for very long and it was to be dealt with today. The matter before the House today as a question of privilege is a specific motion that requires that Mr. Epp and Mr. McGrath be there, and it seems to me it is not a question of every time.

This is an important item being dealt with by the House now, it affects both Mr. Epp and Mr. McGrath, which is why they were there. I might also add, Mr. Chairman, if you do not mind, Mr. Mackasey said that there are a number of people who are here from the House. I was of course a bit late because I was in the House, because the question of privilege involves specifically me, the undertaking was given to me by Mr. Lapierre and the Minister who at that time spoke for the government.

So I would like to have remained in the House but there was sone concern on the part of Mr. Epp and Mr. McGrath that they were not sure exactly how the munificence of the government side would operate and that somehow we would just get moved over while they busy in the House defending their position and making their point of view on the question of privilege.

So, Mr. Chairman, I hope that the accord of the members opposite and the members of the New Democratic Party would operate so they would allow Mr. Epp and Mr. McGrath to deal with what is their first responsibility in relation to the question of privilege that involves this Committee, and after that is done we can come back and proceed.

I might say in particular that we are moving into Clause 11, and I know that Mr. Epp has some specific concerns with three of the motions which have been put out by Mr. Robinson and he wants to make a contribution on those.

Let me conclude by saying that if we accept at least a minimum normal courtesy, that you will at least allow them to vote if not make a contribution, then the best you are going to be able to do is get through one discussion on one amendment. So I am not so sure there is a big difference in practicality.

[Page 15]

There might be an enormous difference in trying to build some small bridges of co-operation.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable David Crombie.

Mr. Hawkes.

Mr. Hawkes: Thank you, Mr. Chairman.

I have missed the last two days of debate, I have been in Toronto and Central Ontario speaking to Canadians from a region that is not my own and detecting an increasing and rather vociferous and rather strong degree of concern from Canadians of all walks of life, and while they might agree with the need for constitutional renewal, the concern they feel is related to the process that this Committee and the House of Commons is engaged in.

Members of the Committee may recall that in response to a question asked by one of our aboriginal groups, that Mr. Mackasey and myself …

[Translation]

M. Lapierre: Mr. Chairman, on a point of order.

The Joint Chairman (Mr. Joyal): Would the Chair rule if Mr. Hawkes stays on the proposed motion? I believe he is talking to us about his trips.

[Text]

The Joint Chairman (Mr. Joyal): Well, Mr. Lapierre and Mr. Hawkes, with great respect, I was just consulting the rules of procedure during a debate on a motion to adjourn and I want to read you the recommended rules and the rule reads:

The Chair exhorts members participating in the debate on this motion to adhere as much as possible to the rule of relevance in this case.

And I understand we have a motion and the motion reads that this Committee adjourn until those members of this Committee engaged in the debate in the House of Commons on a question of privilege arising from breach of undertaking given by the government in this Committee have completed.

So I think that if the honourable member wants to have a contribution to our debate, he should restrict his intervention to the core of the proposed section and not deal generally with all aspects of the political context in which our previous work has taken place, with great respect for the honourable member.

Mr. Hawkes: I appreciate the admonition and I will attempt to stay very close to the terms of relevance.

It seems to me that members of this Committee sitting around the table at this point in time will vote yes for this motion or will vote no.

The essence of thtl motion really relates to the fact of whether or not we shall hear the thoughts and opinions of two members of this Committee who have attended well over 60 sessions in anticipation of th stage of clause-by-clause analysis.

We have been through a process, Mr. Chairman, where we have been denied time, denied expert testimony and now we

[Page 16]

seek, those who would vote against this motion, essentially seek to deny all members of this Committee the wisdom which comes from the kind of study and attention which Mr. Epp and Mr. McGrath have given to the work of this Committee.

We will recall witness after witness spoke to us about the importance of the words, the commas, the paragraphs that will go into pre-eminent law, that will make all other laws of this nation of no force and effect if in fact they contravene those words.

It seems to me that, in that context, when we have such a limited range of advice, such a reduced time span in which to consider that advice, the denial of expert testimony, that we in fact are acting in an irresponsible manner when we go this one step further which is to deny ourselves the testimony that could come from two members on our side who, through their attendance at this Committee, and I think members would acknowledge the wisdom of their comments over time, to deny ourselves that wisdom in the process of clause by clause analysis is to deny in some sense our obligation as elected people to the House of Commons, but I think it is to deny, potentially deny the Canadian people a source of advice which should be a part of the public record. If we are engaged in a real process of search for a better set of words, then deny the Canadian people access to advice which they should have and which should be considered before we make decisions.

It is in that context, Mr. Chairman, that I make the strongest possible plea that the members opposite consider very, very carefully the principle that is involved on what on the surface, might appear to be a rather simple motion.

Are we to continue our practice of denying ourselves time for consideration, denying ourselves time to hear expert witnesses, now we are denying ourselves the opportunity to hear our own Committee members that have put themselves in a position to offer concrete and good advice.

That is what the vote, Mr. Chairman, is about.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes.

[Translation]

Senator Asselin: Mr. Chairman, on a question of privilege.

The Joint Chairman (Mr. Joyal): The Honourable Senator Asselin on a question of privilege.

Senator Asselin: Mr. Chairman, even if it is a motion which has been put by a member of my party, I do not think that the Chair can force us into discussing this motion if it is not drafted in both languages.

Then, before proceeding with the debate, I would ask you to have the motion translated into French.

The Joint Chairman (Mr. Joyal): Senator Asselin, I will certainly ask immediately the translation services which have been put to our disposal as a committee, at the request of the Chair, to translate in to both official languages the text of the proposal put forward by John Fraser.

[Page 17]

Senator Roblin.

Senator Asselin: Mr. Chairman, I did not get the answer that I had hoped for to my question of privilege. As a French Canadian belonging to a bilingual country, I have the right to require that this proposal be translated into French before being debated.

The Joint Chairman (Mr. Joyal): I have been asked, Senator Asselin, to read you …

[Text]

Senator Asselin: It is my case, I am pleading my own case!

[Translation]

The Joint Chairman (Mr. Joyal): I am trying to provide an answer to your question, Senator Asselin. If you would be so kind as to listen to me while I do so, it might be of help to us in our discussion.

Senator Asselin: I always bow to your decisions, Mr. Chairman, but I must respond to an intervention that was made by my friends opposite.

I very humbly bow to your decision.

The Joint Chairman (Mr. Joyal): Here it is. I will read you Standing Order 45 of the House of Commons, which is applicable to the work of our Committee.

Standing Order 45(1) reads as follows:

A. All motions shall be in writing, and seconded, before being debated or put from the Chair. When a motion is seconded, it shall be read in English and in French by Mr. Speaker, if he be familiar with both languages; if not, Mr. Speaker shall read the motion in one language and direct the Clerk at the Table to read it in the other before debate.

So this is the ruling with respect to the privilege of an honourable member of the House of Commons or the Senate to ask that motions be read in one or the other official language of Canada.

Since the Honourable John Fraser read the motion in English and I outlined the contents of that motion for one of the honourable members in English, which was in fact the language used by that honourable member, I am willing to agree to your request to have the motion read in French, since you have this right under Standing Order 45. I can thus give you a free but correct translation, as stated in paragraph 1 of the Standing Order.

Senator Asselin: Before you read it in French, Mr. Chairman, may I remind you of the principles of bilingualism that apply to official documents of Parliament?

The Joint Chairman (Mr. Joyal): Yes.

Senator Asselin: All parliamentary documents must be submitted in both official languages, that is, in English and in French.

[Page 18]

The Joint Chairman (Mr. Joyal): In this case, Senator Asselin, it is not a government document. It is a proposal but it is not an official parliamentary document yet.

When the motion has been voted on and included in the record of today’s proceedings, it will naturally be available in both official languages. But at this stage, I am subject to Standing Order 45(1) which I will read to you once again:

A. All motions shall be in writing, and seconded, before being debated or put from the Chair. When a motion is seconded, it shall be read in English and in French by Mr. Speaker, if he be familiar with both languages; if not, Mr. Speaker shall read the motion in one language and direct the Clerk at the Table to read it in the other, before debate.

Since I claim to know both languages well enough to read the motion in French and since I have read it twice in English, I can now read it twice in French only.

Senator Asselin: I would also remind you, Mr. Chairman, that there is a Standing Order which states that, once a member tables a motion before a committee, the motion belongs to the committee and cannot be withdrawn without its consent. You have said that it is not an official committee document yet, but I submit that the motion tabled by Mr. Fraser is now a committee document and that Mr. Fraser cannot withdraw it without the committee’s consent.

I submit, then, that this is an official document and must be tabled in both languages.

The Joint Chairman (Mr. Joyal): Here it is; I have it in both languages and I will read you the text in the other language. I will have the document circulated later on. That this committee adjourn its proceedings until the return of the committee members who are presently taking part in a debate in the House of Commons on a question of privilege arising from a breach of undertaking made by the government to this committee.

This is the text of the motion.

[Text]

The Joint Chairman (Mr. Joyal): I would like to invite the honourable Duff Roblin.

Senator Roblin: Thank you very much, Mr. Chairman. I come from one of the Houses of this Parliament, which is singularly and fortunately unencumbered by many rules. So I do not feel I am an expert to interpret the rules of the Committee of the House of Commons under whose rules we are operating here to members who are gathered around the table.

In fact I will have to appeal to their common sense, and, I hope, their better judgment in connection with the matter rather than on a strict reference to the rules that may apply.

[Page 19]

In the Senate we have a very happy regulation, in my opinion, that committees of the Senate do not sit when the Senate itself is not in session.

It is true that this rule is sometimes lifted when necessary; but it is the general rule in the Senate and for our purposes a good rule.

I know that the same circumstances do not prevail in the House of Commons and that other rules are necessary there.

But I want to examine the substance of the problem which has led to this discussion. The substance of the problem is that some members of this Committee are absent. We would normally think that that would be rather shallow grounds on which to recommend the suspension of the Committee’s activities, because it happens all the time.

I think we have to examine the circumstances which have led to this absence. That is a question of privilege.

Now, the question of privilege might well have been dealt with in this body if the majority had seen fit to do so.

The Joint Chairman (Mr. Joyal): I am sorry to interrupt the honourable Senator Roblin. There is a point of order. Mr. Lapierre.

[Translation]

Mr. Lapierre: Mr. Chairman, on a point of order.

The Joint Chairman (Mr. Joyal): Mr. Lapierre, on a point of order.

Mr. Lapierre: I can testify that they have finished with the debate at the House. Senator Roblin can thus save his breath for a later debate since the motion is no longer necessary at this point in time.

[Text]

Senator Roblin: That is good news. I am glad to hear. I will just continue with what I have had to say. I have not yet seen my honourable friends here yet.

But what I have to say is that they are absent because they have to defend …

An hon. Member: You are wasting the time of the committee!

An hon. Member: Call the motion!

The Joint Chairman (Mr. Joyal): Order, please.

I would like to invite the honourable Senator Roblin to complete his intervention.

Senator Roblin: Thank you, Mr. Chairman.

They are absent because they have to defend a point of privilege.

In the House of Commons they would have appealed, in the first instance not to any partisan vote from members of the House in dealing with questions of privilege, but to the ruling of the Speaker, which is quite a different thing as I understand the matter.

In the committee no such protection is offered to members of minority groups on questions of privilege.

In committee there is no appeal to any impartial arbiter of any kind. We oilly have an appeal to a majority, and we know

[Page 20]

what that majority did on the question of privilege in the first instance here.

So the only recourse of the gentlemen who are absent is to go to the House of Commons where an appeal to an impartial arbiter does lie.

One can certainly regard it as a special circumstance which might justify their absence from this committee if they have to go to the House to exercise that right of privilege which was denied them here.

There is no way in which they could stay in this committee and defend their right. That was ruled out; they had to go to another forum, and if that other forum sits at the same time as we do, well that is a fact that they cannot control.

So you will understand that is why they are not here. Now the question is does it matter? Well, that is a question open to opinion. It may matter to some and it may not matter to others.

But I would suggest to members of the committee that the two persons concerned have been second to none in their zealous attendance of the proceedings of this body ever since it started. They have made an important study and important contributions to our work so far, and I would go so far as to say that there are few members of the committee who are better informed on the subject matter before us, on the representations that have been made or on the amendments which have been presented or the substantive discussions than those two gentlemen are.

Speaking for my part, I think it would be a loss to the committee and it would be doing a substantial injustice to the cause that we intend to serve here, namely the devising of the best possible constitution, that we should be deprived of the contribution of those two men for the reasons I have outlined.

They are not absent because of delinquency; they are not absent because they are careless of their duties; they are not absent because they have gone some place else out of whim.

They are absent for good and sufficient reason.

Now, if the majority of this committee had had the generosity and the good judgment and the common sense as well as the courtesy and consideration to have listened to the original plea made by one of my colleagues here, then this conversation between you and me, Mr. Chairman, would have been unnecessary.

It seems to me that we have done nothing less than our duty here in keeping the door open—if I may use that phrase—until the gentlemen I have referred to are able to resume their places around this table.

Now, I do not know whether they are here already. I am getting some encouraging noises from the people on the other side. Maybe they are.

I see one of them. I feel a lot better. I will feel twice as good when the next one comes.

The Joint Chairman (Mr. Joyal): Thank you very much, the honourable Senator Duff Roblin.

[Page 21]

If there are no more speakers, the Chair has no other choice but to call the vote on the motion or with the unanimous consent of the members to invite the mover of the motion.

The honourable Senator Tremblay.

L’honorable senateur Tremblay.

[Translation]

Senator Tremblay: Mr. Chairman, I will limit myself to one or two comments, the first being the exceptional character of the absence of our two colleagues and also the very temporary aspect of the circumstances.

Because half of this problem is now resolved, the other half remains and maybe our friends on the other side wanted to vote against this motion, but as they have now before them half of the solution, maybe they will wish to support the motion guessing that the other half will be resolved in a very short term.

I would like to underline, on the other hand, that these circumstances are exceptional. They are tied to acts that have taken place in the Committee, but this is no precedent that might jeopardize the work of the Committee in the future.

This situation is clear enough and it will be hard to foresee others of a kind where a similar question could be opposed to the one our colleague, the Honourable Mr. Fraser, has raised. If our friends on the other side had agreed to support quickly the motion that we have before us, they would have won their guess on the evolution of the work in the Committee and, at the same time, they would have had an advantage because of their courtesy towards two important members of our Committee.

Thank you, Mr. Chairman.

Senator Goldenberg: We would not have had the opportunity to hear your speech.

The Joint Chairman (Mr. Joyal): Thank you, Honourable Senator Tremblay.

[Text]

I would like then to dispose of the proposed motion and suggest very respectfully to the honourable John Fraser, if he can request the consent of the honourable members, that he can withdraw his motion.

Mr. Fraser: Mr. Chairman, in view of the fact that the debate which we have had has expressed the feelings of the Conservative members here, and of course has served the purpose for which the debate was commenced, and that was to wait until our colleagues could join us, I am very pleased to withdraw the motion.

The Joint Chairman (Mr. Joyal): The Chair does not see any objection from around the table so the motion is withdrawn.

I would like then to invite the honourable members to come back on the amendment moved by Mr. Robinson on Clause 10 of the proposed, resolution, and yesterday when we adjourned our evening session I had on my list of speakers honourable

[Page 22]

Perrin Beatty, but I see that the honourable Beatty is not attending our afternoon session and before I invite Mr. Robinson to conclude on his proposed motion I would like to invite honourable John Fraser.

Mr. Fraser: Thank you very much, Mr. Chairman. I wonder if I could, through you, Mr. Chairman, ask some questions respecting the motion which reads:

to protection against self-crimination from the moment of arrest and the right to be informed of that right.

I wonder, Mr. Minister, if again through you, Mr. Chairman, I could ask you or the law officers of the Crown, there was some discussion of this last night but I think it is important to come back to it, I want to ask this, whether this particular amendment would in any way interfere with the present existing law with respect to the admissibility of a voluntary statement or the inadmissability of an involuntary statement. Of course what I have in mind is that the general rule in criminal law is that if an accused makes a statement which is incriminatory that statement cannot be received in evidence in a court of law against the accused unless it is clear that that statement was given voluntarily; and voluntarily means in the absence of undue pressure, physical abuse, trickery or any other invitation to give that statement or any other circumstances that surround the giving of the statement which is considered in law to be unfair and to have exercised undue, wrongful or other influence on the accused which would, under the circumstances, put the incriminatory statement in doubt as to its validity with respect to its propriety and its use in being used in front of a jury or in front of a judge as evidence of the Crown leading to a conviction.

So I am wondering, Mr. Minister, if you could respond to that. You may feel that it is appropriate to call upon either of our distinguished law officers of the Crown to give us a little bit more understanding of exactly what the effect of this amendment would be.

Mr. E. G. Ewaschuk (Q.C., Director, Criminal Law Amendments Section, Department of Justice): Knowing, Mr. Fraser, that Mr. Robinson’s amendment, with all due fairness to him, would affect the voluntariness rule, I think the onus would still be on the Crown, and I have argued two of these cases within the last year or year and a half in the Supreme Court of Canada myself, that it still would be the fear of prejudice, hope of advantage or, now, this oppressive test that they have condensed into the word voluntary. So I think that test would still be there.

Over and beyond that would be the question that if the police officer failed to inform the person of the right not to say anything at the time of the arrest and to be informed of that, if he failed in fact to give that to him as part of a caution, unlike the present law which says that that is an important factor to be considered into the determination of voluntariness, I would think that per se that would exclude the evidence. That would seem to be the consequence.

So I do not think in fact, again in all fairness to Mr. Robinson, that he is detracting from the voluntariness test. I think he is adding this one condition precedent to it, that you must be informed of that right to remain silent.

[Page 23]

Mr. Fraser: If all Mr. Robinson is doing is saying that before a confession can be received or an admission cari be received which goes against the interest of the accused, that the accused must be informed of the right not to incriminate himself or herself, does this make any difference in the existing rule of law, and I am not now referring to the question of admissibility.

Can you help us in that regard?

Mr. Ewaschuk: I think it takes away from some of the flexibility, obviously. We entrench it and freeze it in this particular charter. What happened was, and I am not sure that Senator Asselin could not help us on this, but at one time in the thirties there was a case called Gach in the Supreme Court of Canada and the interpretation on that was that if there was a failure to caution it automatically resulted in exclusion; so for about 13 years thereafter if there was in fact no caution by the police upon arrest it automatically resulted in exclusion.

The difficulty was in determining if the officer had reasonable and probable grounds, if in fact it was an interrogation, and I think the Supreme Court of Canada considered that determining the difficulty of saying when, according to the judges’ rules, you had enough evidence to say at that point you must caution. That difficult determination itself was determinative in their minds of saying, no, that was but one factor to consider as to whether or not the statement was voluntary, so they retrenched in the Beaudreau case in 1949 from that invariable rule that resulted in automatic exclusion. It seems, I guess, that the law works fairly well right now in that regard.

Mr. Fraser: Mr. Chairman, the point of my questioning is this, and I would ask all honourable members fo the Committee to pay very close attention.

Having practiced in the criminal courts I am very aware of the necessity for not taking a confession or admission from a potential accused under wrongful conditions, so on that principle I do not need to be persuaded; but I am concerned about what this amendment would do to a situation where a police officer has to make a sudden arrest in the heat of the moment where there is a lot of activity going on, keeping in mind the fact that most police officers engaged in apprehending, especially, a dangerous criminal, are hardly going to have time to look up the rules of admissibility, the rules of evidence or the Charter of Rights.

What I am concerned about here is—picture the situation where a police officer arrests a person engaging in a crime, let us put it in the most extreme, a violent crime, or immediately after a violent crime that has not necessarily been witnessed by the police officer, and at the moment that the potential accused is physically apprehended and the police constable says you are under arrest, would this mean that any confession, any admission subsequent to that, no matter what the circumstances were, could not be admitted in evidence on the part of the Crown because of the amendment that Mr. Robinson is proposing?

Now, that becomes a very important …

[Page 24]

Senator Connolly: If there was no warning.

Mr. Fraser: Senator Connolly very appropriately interjects and says, “If there was no warning.” My point is that in the midst of attending a call that a crime of, say, physical violence has been or is being committed and the police constable grabs somebody who is moving away from the room where, let us assume, the crime has been committed, and grabs that person on the assumption that that person may very well be guilty or may very well certainly be involved in it and says, you are under arrest, and the person’s response is, I did not know the gun was loaded, or he goes on to say, that fellow has had it coming to him for a long time, and there is no time under the circumstances for a police constable while he physically stops somebody to give a warning.

Would this mean that no statement whatsoever made by a potential accused at the time that the police arrived to do their public duty, to either stop a crime or to stop a crime from being continued or to stop those who may have committed the crime from escaping cannot be introduced as evidence?

Mr. Ewaschuk: I do not think that the courts would be quite that unreasonable. I think that may be one of the dangers, obviously. It would have to be given.

As you are probably well aware, the duty on arrest under Section 29 of the Criminal Code, has in a series of cases been circumscribed to the effect that when you arc arresting somebody if that person takes flight, if that person becomes violent with you, then it is not feasible to give the reason for the arrest and they have discharged the police from having to give the reason for the arrest.

Whether or not they could as a matter of common law, so to speak, judge-made law, impose those reasonable conditions, I would think they probably could; but that may be one of the considerations in the need to entrench or the need not to entrench that particular right as it seems to work fairly well in practice.

I think I should add that in the United States constitution it says nothing about the right of self-incrimination in Article 5, in fact, it says there in Article 5, “nor shall be compelled in any criminal case to be a witness against himself”.

That is in fact what the government will be proposing m Clause 11 (c).

In the Charter of International Rights and such, that m Article 14 it talks there about,

In the determination of any criminal charge

That is the actual court proceedings, it says that the person shall be intitled to the following minimal guarantees and full equality not to be compelled to testify against himself, that means in those proceedings. So what we are saying is that the Americans have not gone that far, really. Some of the court cases have determined that, as you may be well aware, Miranda and Escobito and that may be one of the dangers of this, they say that you automatically have to give that warning failing which the evidence is automatically excluded.

So that was one of the considerations as I understand it of the government not proposing to put that into the constitution, rather to put in the minimal guarantee that the accused will

[Page 25]

never be forced to testify against himself in a proceeding against him. That will be in Clause 11(c).

The Joint Chairman (Mr. Joyal): Thank you very much, honourable John Fraser. I want to remind you, and I think it is for the benefit of all the honourable members of this Committee, that we have already accepted that members of the Joint Committee shall be entitled to speak once only to any amendment or subamendment and for a maximum time of three minutes; and of course there is too the provision that questions or supplementary questions are allowed by the Chair at the discretion of the Chair. Honourable Senator Hays, our Joint Chairman, has just reminded me that you have spoken for more than eight minutes. I have to take into account that other members want to address themselves to that very clause.

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, I would like to ask the Minister whether he has had communications from the Canadian Association of Chiefs of Police regarding the legal rights that we are dealing with.

Hon. Jean Chrétien (Minister of Justice and Attorney General of Canada): Yes, they made a presentation here and they sent me a copy of a speech that was delivered yesterday, and I read some clippings in the press too, like probably you got.

Mr. Epp: Have you received their letter and accompanying press release dated January 27, 1981?

Mr. Chrétien: We have received it. I have not had time to read it.

Mr. Epp: In that letter of January 27, 1981, the Canadian Association of Chiefs of Police, and I cannot quote the whole matter but in their covering letter they say, among other things,

To say that the law enforcement agencies of this country are distressed and totally confused by these proposals barely describes our feelings.

They are addressing the government proposals.

Additionally on page 2 they say:

As matters are now progressing however we cannot, in all professional conscience, allow the latest proposals to the legal section of the Charter of Rights and Freedoms to pass without comment.

Again,

Despite this, we feel duty bound to stress that a grave error will be committed unless significant changes are made to certain sections of the proposed Constitution Act of 1980.

In another place they say,

will effectively emasculate the law enforcement community.

Lastly,

There is no doubt in our minds that the eventual losers in this will be the citizens of this country whom you and we serve.

[Page 26]

Now, one of their arguments is the matter of entrenchment, and I think we can put that matter aside, but the question that I want to ask you is this. When the chiefs of police appeared before the Committee they gave us a number of points of view which were listened to very carefully I think by all members of the Committee, but subsequent to the amendments that you tabled, Mr. Minister, they feel that the very points that they made, that the difficulties are now being further exacerbated by your amendments. What comment do you have to the Chiefs of Police?

Mr. Chrétien: I would like to make this comment that we have improved the Charter in the light of the discussion that occurred in front of this Committee and some of the new amendments that we have rejected was to meet some of those objections of the police at that time. I would like to remind the Committee that on all those clauses that we rejected because we have to listen to the chiefs of police, the progressive Conservative party voted for those propositions that were coming from the NDP.

Mr. Epp: Are you saying, Mr. Minister, that the arguments put forward by the Chiefs of Police, that you reject them?

Mr. Chrétien: No, I say that they made some points and we have taken into account some of their representations. Many of the propositions that we have been debating for days now from Mr. Robinson are the type of propositions that the Chiefs of Police recommended we not accept.

I am a bit disappointed to see that you are always voting along with Mr. Robinson on virtually all his amendments that we have rejected, mainly, very often, in order to permit the police to be able to do their work.

So we have taken into account their objections. Not all of them because we did listen to the other people who made some recommendations, like the civil liberties groups and so on. Maybe you will pass the judgment on the series of amendments that I am rejecting one after the other coming from Mr. Robinson is because, among other things, it will even create further complications for the police. Mr. Robinson does not give a damn about it, it is quite evident, but …

Mr. Robinson: Point of order, Mr. Chairman, really. We should be dealing …

Mr. Chrétien: If I were to have a point of order every time something happened that does not please me …

Mr. Robinson: Stick to the facts.

Mr. Chrétien: Yes, but there are some unpleasant things like your colleague the other day accused me of having received these carvings from the Eskimos when I institute the-the lnuit Tapirisat did not exist, that the government of the territories was in Ottawa, move it to the north and so on. I can take it so get used to it.

I just say that is a fact and I read the reports and I am inviting the Chiefs of Police to watch the way the Tories are voting on the amendments coming into this committee.

[Page 27]

Mr. Epp: Mr. Minister, what I would like to get back to is this: there are a number of areas where I agree with you that we have to strengthen the hands of the police, I have no difficulty with that and you will see by our voting record that I have no doubt about that, there is no question, but the question I want to put to you is this:

The Chiefs of Police are addressing the honourable Jean Chrétien, not Mr. Robinson, with whom I disagree on many points …

Mr. Chrétien: You voted with him on many points.

Mr. Epp: May I finish, please? They are addressing you and your government, the government that you represent, and they have taken strong objection to your amendments, quite apart from Mr. Robinson or anyone else, that is what I would like you to address and respond to, that narrow point?

Mr. Chrétien: We have studied their representation, we have put the amendment in front of the committee and I do not see many of the amendments that I have put forward that were not accepted by all the members of this committee. All the amendments I have proposed so far have been accepted by all the members of the committee because they must have been good.

We have received the representation and we passed judgment, but all the amendments that we have put forward so far coming from the government have been approved by all the members of the committee. I do not know of any that have been voted against.

However, we have rejected a lot of the amendments coming from Mr. Robinson, some from you, but my amendments and the government amendments have been accepted by all the committee so I am quite pleased with it. lt is because, probably, that I passed the right judgment on the representations of the police.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Jake Epp.

I have no other speakers on my list, I would like to invite Mr. Robinson to conclude on the proposed motion.

Mr. Robinson: Mr. Chairman, last day I indicated why it was we were proposing this particular motion, it was to entrench essentially the right to remain silent, which Mr. Ewaschuck has already indicated is part of Canadian jurisprudence and it goes beyond that and it seeks to ensure that this right is not a hollow right, that those persons who have this right are informed of that particular right.

Mr. Chairman, I will defend the position we have taken on the legal rights section 1and we will be continuing to take before the Canadian Association of Chiefs of Police.

The Canadian Association of Chiefs of Police back in 1959 or 1960, I would remind members of this Committee, fought against the Diefenbaker Bill of Rights. They said that there would be a crime wave if the Diefenbaker Bill of Rights were brought into existence and that it would tie the hands of the

[Page 28]

police of this country. Those kinds of dire warnings are not new to parliamentarians in this country, and of course there was no substance to them and, Mr. Chairman, I suggest, with respect to the Canadian Association of Chiefs of Police, there is no more substance to them today.

To suggest that because a person has the right to an interpreter or that the person has the fundamental right to trial by jury or the other rights that are enumerated here, that somehow there is going to be a threat to the criminal justice process in this country is implying that the only way the police of this country can obtain their evidence is by trampling on people’s civil liberties, and we reject that, Mr. Chairman.

We suggest that if the police want to obtain their evidence in a legal and responsible manner, that none of the proposals before this Committee will in any way hamper them. It is only where they want to take short cuts with the civil liberties of Canadians that these particular proposals will hamper them, Mr. Chairman, and I am rather disappointed, to say the least, to see the Conservative party, or at least Mr. Epp, apparently jumping on the bandwagon of the Canadian Association of Chiefs of Police after yesterday and the day before they were supporting these very amendments which have been so bitterly attacked by the Canadian Association of Chiefs of Police.

They say, for example, that the right to be protected against arbitrary search and seizure is one which is going to lead to the downfall of Canadian society. Well, that right, Mr. Chairman, is one which was supported by each and every one of my colleagues on this side of the table.

So I hope, Mr. Chairman, they are not being unduly intluenced by what I would suggest to be the rather extreme remarks of the Canadian Association of Chiefs of Police. I would hope, Mr. Chairman, that they could continue to look at these particular amendments and particular proposals on their merits.

Those merits are, quite simply, that the civil liberties of all Canadians deserve to be protected and particularly protected from abuse in times of perhaps extreme desire on the part of the police forces of this country to obtain evidence. We have seen too many examples in the past of the RCMP security service, for example, violating the law because of what they thought was right.

Mr. Chairman, this amendment would entrench one of those rights which Canadians take for granted and which should be entrenched in a civilized bill of rights.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

Amendment negatived.

Clause 10 as amended agreed to.

The Joint Chairman (Mr. Joyal): Before the Chair calls Clause 11, I would like to inform the honourable members that so far as the House will not be sitting tonight and we have agreed to have a session tonight, if some of the honourable members intend to be absent and want to be replaced I would invite you to do so at this point because the House not being in

[Page 29]

session tonight the usual procedure of being substituted by a colleague from the House would not be possible.

So far as we are voting tonight, the Chair felt it was appropriate to remind all honourable members to do so at an appropriate time so we will not be caught in the situation that we had last week where some of our colleagues were prevented from asking questions or participating in our debate.

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, I am glad you have given the Committee that caution, one that we were aware of. I am wondering whether there have been any discussions with members in the other place that if the Liberal party decides to go through with a plan to sit 25 hours in a 24 hour day, and that now has the support of the New Democratic Party, I notice, if that is to take place there might be a different regime as to the manner of placing honourable Senators on the Committee.

Has there been any discussion there?

The Joint Chairman (Mr. Joyal): Not that the Chair is aware of but I understand that honourable members have agreed to have a meeting of the Subcommittee on Agenda and Procedure tomorrow night and I am quite sure that before that meeting takes place the necessary information for substitution would have been considered, taking into account whether there is a session on Saturday, and of course neither the House nor the Senate are in session on Saturday, so then the appropriate procedure will have taken place before so that everything will be in order on that point.

However, to answer specifically your question, the answer is no.

Mr. Epp: Just to follow that up, I appreciate that but in view of the fact that honourable members of the other place at times leave Ottawa before the Subcommittee meeting is scheduled and the time for reporting, I am wondering if that information could not be given at least during the afternoon session so honourable senators could in fact make plans?

The Joint Chairman (Senator Hays): I might interject that Senators are used to working hard.

Mr. Epp: Mr. Chairman, I never doubted that.

The Joint Chairman (Mr. Joyal): Honourable Senator Austin.

Senator Austin: Mr. Chairman, in response to Mr. Epp’s two points I would say that I am not aware of any particular difficulty which Senators will have in complying with sittings for Friday and evening, or on Saturday, or beginning on Monday morning if such should be the decision of this Committee on the advice of the steering committee.

On the point Mr. Epp made with respect to some form of agreement with the New Democratic Party with respect to future sittings, again I must say that I am not aware of that agreement but I am glad to have his news and information.

Mr. Epp: Mr. Chairman, just to allay Senator Austin’s fears, all I am doing is reading the latest copy of CP Press.

Senator Austin: Is somebody quoted, Mr. Epp, in the story from the New Democratic Party as saying that?

[Page 30]

Mr. Epp: Well, if you will just give me a little time, Mr. Chairman, I understand Mr. Nystrom is quoted:

I am willing to stay up all night if necessary towards the ends of the process to accomplish that

So the ally remains firm.

Senator Austin: Mr. Nystrom and I have not had a chance toalk in a bus.

Mr. Nystrom: We have not taken a bus for a long time.

The Joint Chairman (Mr. Joyal): Thank you very much, Honourable Jake Epp.

Before I call the first motion on Clause 11 I just want to remind you very humbly that Mr. Nystrom is not yet a member of the other place.

Mr. McGrath: You will make it if you keep on going this way.

On Clause 11—Proceedings in criminal and penal matters.

The Joint Chairman (Mr. Joyal): I would then like to invite on Clause 11 (1), an amendment moved by the government party, and invite in so doing Mr. Ron Irwin.

Mr. Irwin: Thank you, Mr. Chairman.

This is a word amendment from “anyone” to “any person” …

The Joint Chairman (Mr. Joyal): I am sorry to interrupt, Mr. Irwin. I will identify the amendment that we will be dealing with because honourable members will notice that there are more than nine amendments in relation to Clause 11, and in order to help everyone in the discussion around those amendments I will identify that we are dealing now with the amendment identified as G-11, Clause 11, page 5.

I will repeat: the amendment that we are dealing with now is the amendment number G-11, Clause 11, page 5.

Mr. Irwin: Thank you, Mr. Chairman.

As I indicated, this is a word amendment, “anyone” to “any person” in Clause 11. I would like to move on behalf of the government that the English version of Clause 11 of the proposed constitution act, 1980 be amended by striking out line 7 on page 5 and substituting the following:

Any person charged with an offence has

Il est proposé

Que la version anglaise de l’article 11 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, a la ligne 7, page 5, de ce qui suit: “11. Any person charged with an offence has”.

Thank you, Mr. Chairman.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Irwin. Mr. Robinson.

[Text]

Mr. Robinson: Mr. Chairman, I wonder if we could have some explanation of the purpose of this change in view of certain earlier discussions about distinctions between “everyone” and “every person”, why it is now felt desirable to change

[Page 31]

from “anyone” to “any person” and whether in view of this seeing of the light on the part of the government members you might be prepared to reconsider your comments on “everyone” versus “every person.”

Why is this change being proposed?

Mr. Irwin: Mr. Chairman, I knew that I would get Mr. Robinson on that particular point and I am surprised that he has not started referring to obscure Privy Council decisions of 1929 or 1930.

I will ask Mr. Tassé to respond to that question.

[Translation]

Mr. Chrétien: Mr. Chairman, to answer to Mr. Robinson’s question, it is only a question of style, in order to avoid «il et/ou elle», in French or «he and/or she» in English.

It is purely and simply a matter of editing and we might add … Roger …

[Text]

Mr. Roger Tassé (Q.C., Deputy Minister, Department of Justice): Maybe I could add, Mr. Chairman, that also by adding Clause 11(c), which is a new subclause, we had a grammatical problem and we thought that in effect, if we were to use”person” throughout that it would be simpler and it would read better, and we would not have to use, as the Minister said, “he” or”she” in some of these sections.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson. The Chair does not see any other speakers that want to intervene on the motion so do I see that the motion is carried?

Mr. McGrath: I just wanted to make the point that the question raised by Mr. Robinson should not be considered as opening the door in any way. The explanation makes eminent sense and we accept it.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite the honourable members to take the next amendment, it is the one numbered G-12, Clause 11 (a), page 5, and that is an amendment moved by the government party and I would like to invite Mr. Irwin.

Mr. Irwin: Thank you, Mr. Chairman. I would be pleased to move that Clause 11 of the proposed constitution act, 1980 be amended by striking out lines 9 and 10 on page 5 and substituting the following:

(a) to be informed without unreasonable delay of the specific offence;

Mr. Chairman, just briefly, this now replaces the word “promptly” with “without unreasonable delay.”

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Before I invite Mr. McGrath, I would like to invite Mr. Irwin to read the French text of the proposed amendment.

[Translation]

Mr. Irwin: Moved:

[Text]

Que l’article 11 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 7 et 8, page 5, de ce qui suit:

[Page 32]

“a) d’être informé sans délai anormal de l’infraction précise qu’on lui reproche.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Irwin.

The Honourable James McGrath.

[Text]

Mr. McGrath: Yes, Mr. Chairman. I would like to have an explanation from the government as to why they would use the phrase “without unreasonable delay” as opposed to “promptly”, because the whole word “reasonable” causes some concern as to what you mean by “reasonable” and hence what is meant by “unreasonable”? “Promptly” would be a much better word in terms of protecting rights.

Mr. Ewaschuk: Mr. McGrath, that is obviously so in the classic case where somebody is charged with murder or rape or robbery, but that is not what this section deals with.

This section deals with an offence, it deals with federal offences, it deals with provincial offences, and well over 90 per cent of those offences there is no arrest involved so the person is not there and he cannot be told promptly, meaning you have him there, and obviously that is the way it should be done if the person is there.

However, on the other hand, many of these cases there has to be an assessment so maybe documents are taken, its weights and measure, they go back, a decision is made and then they charge the person by laying an information. What they do in those cases then, is they summons the person. They often use the mails. Now, I think some of us know how slow the mails are and is that “promptly” in bringing that notice or informing the person of the specific offence, or where in fact they may have to serve that person, find that person?

So the question was to give more flexibility to deal with the more minor offences, the regulatory offences, summary conviction offences. rather the other; it was decided it would be preferable to use the words “without unreasonable delay” which gives more flexibility than the word “promptly”.

If we were dealing only with murders, rapes and such, where there was a detention for bail hearing, then the word “promptly” would have been the better word. But we arc not dealing with that, but with all of the range of offences.

So that is the reason for moving to “without unreasonable delay”.

Mr. Chretien: And, Mr. Chairman, if I may, I would add that the Chiefs of Police would be happy with that.

The Joint Chairman (Mr. Joyal): The honourable Mr. McGrath.

Mr. McGrath: Mr. Chairman, it seems to me I remember raising this matter with the Police Chiefs when they were here.

The question is what is unreasonable to you would not seem unreasonable to me.

In other words, it is a question of interpretation, and that very flexibility in interpretation could be used to deny some· body the rights that they would be entitled to under this

[Page 33]

clause. That is what concerns me about the use of the word “reasonable”.

Mr. Ewaschuk: Well, I think it would be reasonable in the circumstances. The police in their submission, as a matter of fact, wanted the expression “as soon as practicable”. Some people there felt that perhaps that was too subjective to the person who may be serving the process and that it should be a determination by the judge.

The consequence, of course, if you say “promptly” may that the charge may be quashed or stayed if you do not notify the person promptly; so that this would give a little more flexibility—” without unreasonable delay” would be taking into account the circumstances of the charge and the particular facts involved.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath.

Mr. Nystrom, followed by the hon. Senator Tremblay, and then Mr. Robinson and the hon. John Fraser.

Mr. Nystrom.

Mr. Nystrom: Mr. Chairman, my question has already been answered.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.

[Translation]

The Honourable Senator Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

I admit that I am somewhat bothered by the use of the expression “sans délai anormal” in the French version. I find this comparison between “délai normal” and “de!ai anormal” somewhat troublesome, because it refers to a standard. How is this standard defined? It is in fact the flexibility that worries me. It is perhaps valid to provide more flexibility, but I would like some reassurance on the definition of the word “normal”.

Mr. Chrétien: All I can say to you is that this is the best expression we could find. Do you have anything better to suggest?

Senator Tremblay: Not at this time, but do you agree that something better should be found?

Mr. Chrétien: Yes. Your question is valid, but do you have anything better to suggest? We are sometimes limited by the meaning of words and this is the best the draftsman could come up with under the circumstances.

Senator Tremblay: Was the expression that you used in the earlier version … In the original version, the expression “dans les meilleurs délais” was used; it is a common expression and I imagine that there is jurisprudence on it. In your first draft amendment it was replaced by “les plus brefs délais” and now we are faced with the expression “sans délai anormal”.

[Page 34]

“Meilleurs délais”, and “plus brefs délais” are common French expressions, whereas “sans délai anormal” is an innovation, to say the least.

I can see from these three stages how language evolves.

Mr. Tassé: The obligation that will arise from this provision must be flexible to a certain degree. This is why it was suggested that the word “promptly” be replaced in the English version; if the word “promptly” is used, the person charged has to be informed of the offence or of information connected with it immediately. For the reasons that Mr. Ewaschuk gave earlier, we do not think it is necessary, once the charge has been laid, to impose this type of restriction. This is why we decided to use the criterion of reasonableness in the English version.

Senator Tremblay: Not unreasonable.

Mr. Tassé: Not unreasonable. It is a free translation. It should not be not unreasonable.

How do we translate this concept into French? We did the best we could. We thought that by referring to the way things are normally done, given the type of activities involved, the obligation to inform the accused of the specific nature of the offence, it is up to the court to decide, in both the English and the French version, whether it would be normal to proceed, given that this obligation has to be fulfilled and that the accused must be provided in good time with the specific information he needs to defend himself. The standard is set by the court.

If you can suggest a better way to articulate this concept, Senator Tremblay, we would be happy to listen to you.

Senator Tremblay: With your permission, I will make the following remark.

Insofar as I can see, what you have just described was adequately expressed by the words “dans les meilleurs délais”. “Dans les meilleurs délais” means just that: as quickly as possible under the circumstances.

You say, however, that the term “promptly” causes problems in English. I would rather you look for an English word that renders the meaning of the French term, which expresses your intent.

Mr. Tassé: We did not feel that “dans les meilleurs délais” was specific enough. “Dans les meilleurs délais” could means putting it off indefinitely. It would be up to the person who is supposed to inform the accused. There is no standard involved.

That is why we decided to use another expression.

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The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.

Mr. Chrétien: In any case, we have to leave a little work for the lawyers and judges!

Senator Tremblay: There are other ways of creating employment!

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay. [Text] Robinson, followed by the honourable John Fraser.

Mr. Robinson: Thank you very much, Mr. Chairman.

I must say I share the concern expressed by my Conservative colleagues with respect to the change from “promptly” “to without unreasonable delay”.

I might also note that the honeymoon between the Conservative members and the Canadian Association of Chiefs of Police seems to have been rather short lived. The Chiefs of Police would be throwing their hands up in horror that their newly acquired allies have deserted them so quickly on what is so obviously a matter which is going to result in rampant crime in the streets.

Mr. Chairman, I think we should maintain the word “promptly”. That word is the word which is used in Clause 10(a).

I would like to remind honourable members of this Committee— and I am sure that Mr. Ewaschuk and the Minister would agree—that this qualification of “promptly” is subject to the overriding test in Clause I, as are all clauses in the Charter—of demonstrable justifiability. If it can be shown to be demonstrably justifiable that there is a problem in complying with this position of “promptly” then there is no difficulty: that Clause I limitation applies to this, and secondly, that the remedies clause in Clause 24 leaves a very wide discretion in the courts and one of the factors they can consider in coming up with the appropriate remedy would indeed be the kind of practical difficulty Mr. Ewaschuk has pointed to. I would oppose the amendment and join with my Conservative colleagues in doing so.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

The honourable John Fraser.

Mr. Chrétien: If I may say this, Clause IO(a) is when a person is detained. There is a big difference when the police is before the person concerned and when the person may be miles away. There is a big difference.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Minister.

The honourable John Fraser.

Mr. Fraser: Thank you, Mr. Chairman.

This may not be of very much assistance to the french translation.

Again, referring to Black’s Law Dictionary, the word “prompt” is defined as “to act immediately; responding on the instant” .

I do not have the advantage of seeing other definitions in Canadian cases as to how the word “prompt” has been

[Page 36]

defined. But I ask honourable members just to look at those words-“to act immediately, responding on the instant”.

Now, interestingly enough, in the same law dictionary, “reasonable notice”, which is what the government amendment is, is defined as “such notice or information of a fact as may fairly and properly be expected or required in the particular circumstances”.

Now, that is open to different views, as to how much time ought to be required in each case.

I am a little concerned—and I am only speaking for myself here, unlike some of my colleagues on the Liberal side who do not introduce their comments with that caveat, so, I am I am looking at my very good friend, Mr. Lapierre—that if the general and accepted definition in law of “prompt” is consistent with the one in Black’s Law Dictionary “to act immediately, responding on the instant”, that could create some problems.

On the other hand, “reasonable notice”—and again, I am only referring to the English and not discussing how it may appear in French—”such notice or information of a fact as may fairly or properly be expected or required in the particular circumstances”.

Having said that, and having pointed out that when we are dealing with words, we had better know what they mean, which makes the work of this Committee under the time constraints we are operating extremely difficult, and I do not think we are doing justice to the amendment.

In any event, what I would like to ask is this. The amendment is to Clause 11, and to Clause 11 (a). It says that

Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence

Now, I want to know what “specific offence” means. That certainly cannot be the charge; because it says “any person charged with an offence”, which would imply they had already been charged. If a person is charged with breaking and entering, that is what they are charged with.

Then it goes on to say that they have the right to be informed promptly of the specific offence. Does that mean they have the right promptly to be informed that they have been charged with breaking and entering, or does this mean that they have the right promptly, or without unreasonable delay to be given the particulars of the offence?

In trying to help anyone who may be watching this, a charge is one thing. A charge of breaking and entering is the specific charge. It usually is accompanied by the statement that so and so did unlawfully on such and such a day and at such and such a place, break and enter.

But there are many other aspects which are called “particulars of the offence” which, of course, can be sought by defence counsel on application, which go far farther than that.

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I want to know whether Clause 11 (a) is talking about the particulars of the offence, or just about the charge itself! If what this means is that you cannot be charged without being told that you are charged, then I follow you; but if it means that you can be charged and told of what you are charged and Clause 11 (a) then means you must be promptly or without unreasonable delay given the particulars of the charge, then I want to know what this means.

I am not saying this to delay the proceedings of this Committee, I am just asking these questions because we are now dealing with very difficult concepts and we have to know what we are talking about, then this Committee is not doing its job. Somebody else will come along later, as I have said before, and say, “Why did not the Members of Parliament ask a few questions and find out what they were talking about?”

Mr. Ewaschuk: If we take the example of somebody shooting somebody—to go back to Clause 10(a) that everyone has the right.

Everyone has the right on arrest or detention to be informed promptly of the reasons therefor. So, the policeman puts the arm on the person and says, “I am arresting you for shooting so and so, for killing somebody”. He has told him the reason, but he has not told him of the specific charge. Now that is step number one: “Promptly”—he has him there, and he can tell him promptly, assuming that he is not fighting back or there is no flight.

Then we go to the next clause—”Anyone charged”, the way I interpret that is not that you are being told you are charged with murder, but it is in fact the laying of the information—Section 455.3 of the Criminal Code. You go in front of JP and you lay that information; that is charging somebody with an offence.

So we assume, then, that the police have in fact sworn to the murder information, and he is still there.

Well, in Mr. McGrath’s earlier example, he is still in the cells, so it is not very difficult to walk down there. That is what Clause 11(a) assumes. You are going to tell him now not that he is being held on a homicide for killing somebody, but that you are charged with second degree murder or manslaughter or first degree murder—you have to go on and tell him that.

In the normal course of events, however, what will happen is that you will serve him with an appearance notice. There may be a summary conviction ticket or, in a great many of these situations, it is actually a summons.

You will inform the person that he would be charged on the laying of the information; in fact, if we are assuming in a summons situation he would not be informed until the summons were served on him through the mail or by personal service. Then he would be informed of the specific charge—careless driving, weights and measures, whatever type of offence it may be; but the process, the document that he would be served with would tell him of the specific charge.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fraser.

I would like to invite the honourable Mr. Hawkes.

[Page 38]

Mr. Hawkes: Thank you very much, Mr. Chairman. Just a quick question about your wording here. It seems to me that the most common offence committed in Canada would be a “no parking” offence which is usually a municipal by-law.

I wonder if the two choices you have given us in wording have any implications for the word “informed”.

I am wondering—because the present system generally is to put a ticket on the windshield wiper; but if it has implications for the word “informed” so as to require the municipalities to mail out notices or to deliver notice in person, there would be significant budgetary implications for municipal and county governments.

I wonder if you have considered that and whether you can give us some advice on whether or not the wording would affect that kind of offence?

Mr. Ewaschuk: No.

There are two ways of looking at that, because in some of the provinces you are considered to be charged when the summary conviction ticket, or whatever you want to call it, is served on you.

Now, assuming, in fact, that the documents then become rolled up into one, so that you have the charge and then have the service by putting it on the windshield, so that they happen almost instantaneously: the concept here may be that you are not really charged in some provinces until it is confirmed by a Justice of the Peace who is willing to receive that.

But in most places, no; the actual filling out of the document, putting it on the windshield is both the charge, the laying of the information and the service as well, so that they happen instantaneously and there is no problem in that case.

Mr. Hawkes: What you are saying is that if this clause becomes law, no one will be able to argue successfully in court for a change of that system and that in fact the wording you are proposing protects the rights of municipalities to continue to engage in the system they have been using?

Mr. Ewaschuk: It may be argued, but in fact this would be a factual matter, that you did not receive the ticket, that the ticket was not on the windshield; you will get that in each and every case; whoever the Justice of the Peace or whoever may be sitting, it may be a provincial court judge, will make a determination as a fact whether or not it was put there.

So, no; the short answer is we are not concerned and we think that this will not affect the day to day situation—if we put something like “without unreasonable delay”; putting it on the windshield causes no problems even with the word “promptly”. It is where you have to serve after the fact.

But one pragmatic concern really is whether or not, if some of these cases are’ stayed in court on the basis that they were not served promptly, whether or not the police would then return—and they do have the powers in many situations of arresting without a warrant, rather than using summonses which is the preferred route since the Bail Reform Act—they might, in fact, resort more to arrest without warrant. We hope we would not drive them into that, and by putting in the words

[Page 39]

“without unreasonable delay”, I think that would give more flexibility to the system rather than the word “promptly” .

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes.

[Translation]

The Honourable Senator Asselin.

Senator Asselin: Just a few words, Mr. Chairman. Does the right to be informed promptly means … There is already a time limit in the Criminal Code; as you said earlier, the accused must be summoned to appear before the judge.

Does “promptly” refer to his appearance before the court or to his arrest? Does this mean that he has the right to be informed immediately of the reasons for his arrest?

[Text]

Mr. Ewaschuk: I think that is a very good question because we had a lot of argumentation. It seemed to me that what the international charters were really saying was that it is the right to be informed on first appearance in court that you had the right to be arraigned, you had the right to be told of the information. On the other hand, what this is designed to do is to tell you even before you get to court so that you may prepare for court. Some people assume that maybe when you go to court for the first time that you have to go on with your trial. I think that you and I know that that is not so. You are there many times before you are forced on for your trial.

The short answer is no, it is not intended merely to in fact put the duty on the court to inform you on your first appearance, your arraignment, to be arraigned, it is in fact to be told before you go to court what the specific offence is either by serving you with a summons, an appearance notice or however the process may be, or warrant, but you are to be told of the specific offence.

[Translation]

Senator Asselin: With your permission, Mr. Chairman.

I would like to follow up on what Senator Tremblay said. The expression “sans délai anormal” (without unreasonable delay) contains a double negative.

Would it not be preferable to use the expression “dans les meilleurs délais” or “dans un délai raisonnable”, because the use of the expression “sans délai anormal” could cause interpretation problems for the courts. It will give a lot of ammunition to lawyers who are contesting arrests. What exactly does “sans de!ai anormal” mean? As quickly as possible? The judge will have to decide if the information was provided as quickly as possible or within a reasonable time.

Mr. Tassé, could you … ?

I do not really think that “sans délai anormal” is a French expression. I have never seen it in any law book. I would like to know whether it is used in a criminal code; I personally have never seen it.

[Page 40]

Mr. Tassé: I have already told you about how I feel about the expression “dans Ies meilleurs délais” as opposed to “sans délai anormal”.

After a certain point, it becomes a question of personal preference. I think that it is important that the French and English versions attempt to capture or articulate the same concept or notion.

In English, it has to be done “without unreasonable delay” and I think that we should go about it the same way.

Senator Asselin: But “sans detai anormal” is not French. It is simply not French! “Dans les meilleurs délais” sounds better to me. I would like to consult language experts. Maybe the Chairman could help us out.

Mr. Tassé: The experts from the Department of Justice, of which I am not one, suggested “sans délai anormal”.

I think that the difference between the two concepts is minimal and that it is a question of personal reference.

The Joint Chairman (Mr. Joyal): Thank you, Senator Asselin.

There are no more names on my list. I understand that there are others who have reservations to express.

I will now turn the floor over to the hon. Senator Tremblay on the second round, but I would remind hon. members that I am bound by the procedure which we have agreed upon.

The hon. Senator Tremblay.

Senator Tremblay: I would like you to provide me with some guidelines.

I do not think that “les meilleurs delais” is a literal translation of the expression “without unreasonable delay”, but it is an accurate translation and it is the French equivalent of the expression “without unreasonable delay”.

Before beginning the second round, I would like you to tell me whether I can propose to amend the French version only. Would it be a subamendment? Can it be done?

The Joint Chairman (Mr. Joyal): In this case, Senator Tremblay, it would simply mean leaving the French version as it is without adding or changing anything. In other words, the English version would be amended, but not the French. We could do what we did with the previous amendment, that is, simply withdraw the French part of the amendments, or you can table a subamendment stating that the French text will not be changed.

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Senator Tremblay: I imagine that the mover would have to withdraw the French version of the amendment himself.

The Joint Chairman (Mr. Joyal): That is one possibility. The other is that you table a subamendment to the main amendment, proposing that it be amended by striking out the words «sans délai anormal» and replacing them with «dans les meilleurs délais», which is the usual procedure with a subamendment.

Senator Tremblay: Out of courtesy, I am inclined to let you leave it up to the mover.

The Joint Chairman (Mr. Joyal): I cannot …

Senator Tremblay: No?

The Joint Chairman (Mr. Joyal): You can address the mover through the Chair, but I cannot speak directly on your behalf because, as you know, I am not allowed to take sides on an amendment.

If you wish to put your question to Mr. Irwin, I will ask him to answer.

Senator Tremblay: I would like to ask Mr. Irwin if he is prepared to withdraw the French version of the amendment and retain the original French version, which uses the expression «les meilleurs délais».

The Joint Chairman (Mr. Joyal): Mr. Irwin.

[Text]

Mr. Irwin: Mr. Chairman, I do not profess to have any expertise on languages and I would appreciate it if this question would be addressed to Mr. Tassé or Mr. Chrétien. I just see Mr. Chrétien came back …

[Translation]

Mr. Chrétien: Mr. Tassé advises me, Mr. Chairman, that we cannot accept the term …

Go ahead. Explain.

Mr. Tassé: In English, we would have no trouble accepting “within a reasonable time” instead of “without any unreasonable delay” and in French, .. dans un délai raisonnable•.

Senator Tremblay: Just one comment, Mr. Chairman.

«Dans un délai raisonnable» seems to me to be less suitable than «dans les meilleurs délais».

I am trying to improve the text, but it may not be important enough to take so much of the committee’s time.

Mr. Chrétien: If we keep making suggestions, we could be here until Easter.

Mr. Tassé has made a suggestion which meets Senator Tremblay’s objections half way. We Liberals are always mid way between the two extremes! I would be willing to accept Mr. Tassé’s suggestion.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Minister. Mr. Robinson, on the same point.

[Text]

Mr. Robinson: Mr. Chairman, just a brief supplementary. I think that if we now go to “within a reasonable time” in the English version that we are probably weakening it even more. I

[Page 42]

note that the words, for example, “within a reasonable time” are the precise words that are used with respect to the right to a trial “within a reasonable time” and to have the next clause using those same words. Without unreasonable delay strike me is being some sort of compromise. I would have preferred the word “promptly” to remain but I recognize the Minister is attempting to accommodate the Canadian Association of Chiefs of Police and is also not prepared to use the wording which the International Covenant on Civil and Political Rights used in Article 14(3)(a) which refers to the words “to be informed promptly and detail in a language which he understands of the nature and cause of the charge against him”.

Those are the words which presently bind us, Mr. Minister, but if you wish to yield to the suggestions of the Chiefs of Police in this matter, certainly I will understand.

Mr. Chrétien: Mr. Chairman, I have said that we will accept the words proposed by Mr. Tassé, and “promptly” is not acceptable.

[Translation]

The Joint Chairman (Mr. Joyal): Mr. Lapierre.

Mr. Lapierre: Of the two terms, Mr. Tassé, “dans un délai raisonnable” or “within a reasonable time” or “delay”, which one have you chosen?

Mr. Tassé: “Within a reasonable time”.

Mr. Lapierre: “Time”. Not only will that make the Police Chiefs happy, but it is an acceptable compromise, and I see that my friend opposite, Senator Asselin, also finds it acceptable. Ever since Senator Tremblay translated “Canadian nation” by the word “Canada”, I do not have much confidence in his ability to translate.

The Joint Chairman (Mr. Joyal): I gather that someone has suggested that the amendment be changed.

For procedural purposes, I have to have unanimous consent to change the content of the amendment.

The amendment would read as follows:

[Text]

To be informed within a reasonable time of the specific offence.

Et en français:

d’être informé dans un délai raisonnable de l’infraction précise qu’on lui reproche.

[Translation]

Since the amendment has already been tabled, the Chair cannot change its wording unless there is unanimous consent. So I would like to know whether I have the unanimous consent of the Committee to substitute the terms I have just read.

Mr. Robinson.

[Text]

Mr. Robinson: Mr. Chairman, I certainly have no objection to substituting the French version “Oans un temps raisonnable” but to substitute “within a reasonable time” for the words “without unreasonable delay” removes the emphasis on delay. What we are saying here is that there cannot be any delay which is not reasonable. To go beyond that, to say that it

[Page 43]

just has to be within a reasonable time, is too broad; so I would certainly be prepared to accept the French version but not the English version, Mr. Chairman.

Mr. Fraser: Mr. Chairman, I hope all honourable members will pay very close attention to the point that Mr. Robinson has raised in so far as the English text is concerned because “without unreasonable delay” is far better wording because it means that there cannot be a delay that is unreasonable. If you get to the question of debating about what is a reasonable length of time you can spin this thing out and the whole purpose of this amendment is to serve the notice as quickly as possible but within the bounds of reasonableness.

So the English amendment which is put in front of us as far as we are concerned is the one that ought to be there.

The Joint Chairman (Mr. Joyal): Merci, Mr. Fraser. So I see there is no consensus around the table to substitute “without unreasonable delay” for “within a reasonable time”. I would like then to invite the members to come back on the original motion which is “to be informed without unreasonable delay of the specific offence.” … et en français:

d’être informé sans délai anormal de l’infraction précise qu’on lui reproche.

[Translation]

Senator Asselin: I thought that Mr. Lapierre was speaking for the majority.

If the majority wants to withdraw the main amendment and table Mr. Lapierre’s amendment, we would vote for Mr. Lapierre’s amendment.

The Joint Chairman (Mr. Joyal): I am sorry, Senator Asselin. At this stage, the Chair must stick to the amendment that was read in English and in French by Mr. Irwin.

I have no more speakers on my list for this amendment, so I have no choice but to call the vote.

[Text]

Amendment agreed to.

I would like to invite then the honourable members to take the next amendment that the Chair has been informed of the content which is the amendment numbered G-13, Clause 11, new paragraph after (b), page 5. lt is an amendment moved by the government party. l would like to invite Mr. Irwin.

Mr. Irwin: Thank you, Mr. Chairman. This is a Clause that gives the right to a person not to be compelled to be called as a witness against onesself. I wish to move that Clause 11 of the proposed act 1980 be amended by (a) adding immediately after line 11 on page 5 the following: (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; and (b) relettering the subsequent paragraphs accordingly.

Il est proposé

Que l’article 11 du projet de Loi constitutionnelle de 1980 soit modifié par

a) adjonction, après la ligne 9, page 5, de ce qui suit:

[Page 44]

«c) de ne pas être contraint de témoigner contre lui-meme dans toute poursuite intentee contre lui pour l’infraction qu’on lui reproche;»

b) les changcments de numéros d’alinéa qui en découlent.

[Translation]

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Erwin.

Senator Asselin.

Senator Asselin: Mr. Chairman, I would like some information from the department officials.

No one can be forced under the Criminal Code to testify against himself, but does this cover the case of an accomplice who testifies against an accomplice and is subsequently charged with the same offence? Is this provided for, or does the witness have to ask for the court’s protection?

[Text]

Mr. Ewaschuk: No, that will be in another clause. What this means is only when he is being tried does he have the right not to testify against himself. So that is only when his liberty is at stake during that trial.

The Joint Chairman (Mr. Joyal): Merci, Senator Asselin. I have no other speakers on my list. I see that members are ready for the vote.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite a mover of the next amendment, that is, an amendment moved by the New Democratic Party, and numbered N-14, Clause 11, new paragraph after (b), page 5.

Mr. Robinson to move the proposed amendment.

Mr. Robinson: Yes, Mr. Chairman.

This is a subamendment to the clause we have just passed. I am not sure whether we are dealing with it at the appropriate time, but in any event, I would move that the amendment to Clause 11, adding a new paragraph after paragraph (b) be amended by adding thereto the following words:

or to confess guilt:

En français, il est proposé

Que le projet de modification de la Loi constitutionnelle de I 980 portant adjonction d’un nouvel alinéa après l’alinéa b) soit modifié par adjonction du membre de phrase qui suit: «ou d’avouer sa culpabilité;»

The Joint Chairman (Mr. Joyal): I would suggest, Mr. Robinson. to make sure there is concordance between the paragraphs, it is a new paragraph after Clause 11(c); it is an amendment to the new paragraph that we have just adopted. The new paragraph that we have just adopted reads:

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

[Page 45]

And I understand that for concordance, we should substitute the letter (c) to paragraph (b).

Mr. Robinson: Mr. Chairman, the purpose of this …

An hon. Member: Where does this come in?

Mr. Robinson: Mr. Chairman, where this would come in, if you will just turn back to G-13, which is the clause we just passed, G-13 would be amended so that the words “or to confess guilt” would be added, so that it would read as follows:

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence, or to confess guilt

The Joint Chairman (Mr. Joyal): That is why I suggested changing the letter (b) to the letter (c) in your proposed motion.

Mr. Robinson: Yes, Mr. Chairman, you are quite right.

[Translation]

The Joint Chairman (Mr. Joyal): Then we should in the French text substitute the letter (b) by the letter (c).

So the amended wording would read as follows:

[Text]

Que le projet de modification de la Loi constitutionnelle de 1980 portant adjonction d’un nouvel alinéa après l’alinéa c) soit modifié par adjonction du membre de phrase qui suit: «ou d’avouer sa culpabilité».

Monsieur Robinson.

Mr. Robinson: Mr. Chairman, I would certainly hope that all members of this Committee would support this amendment which is merely bringing us into line with Jongstanding Canadian jurisprudence, and also directly in line with the provisions of Article 14(3)(g) of the International Covenant on Civil and Political Rights which reads:

not to be compelled to testify against himself or to confess guilt

Mr. Chairman, those words are omitted from the proposal which is presently before us, I doubt whether it was an oversight, but certainly this is a right which certainly cannot be denied exists, and which is a fundamental right in the Canadian criminal justice system, which should be included.

There have been a number of representations to include this right explicitly. Some might argue that it is implicit, but I suggest that if there is any ambiguity we should make it very clear that it is explicit.

For example, the Canadian Bar Association at page 16 of their brief, have stated:

That given the importance in Anglo-Canadian jurisprudence of the right to remain silent, we believe that Section 11 should include a provision guaranteeing an accused the right not to be compelled to testify against himself at his own trial, a right not protected by Clause 13, and the wording should be taken directly from Article 14(3)(g), which provides for the right “not to be compelled to testify against himself or to confess guilt”.

[Page 46]

So, Mr. Chairman, that, very shortly, is the reason for the amendment, it is an important right, it is a fundamental right which is not yet protected anywhere in this Charter and I would certainly suggest it is one which should be included, and is one which I hope will be supported by all members of the Committee.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

Honourable John Fraser.

Mr. Fraser: Well, Mr. Chairman, I am not going to quarrel with the thrust of Mr, Robinson’s suggestion, but there is no way in the world, under the criminal jurisprudence of Canada that anybody can be compelled to confess guilt.

Now, I only say this because it is very easy to sit here for several days and extract from our criminal law no end of things that are protections to the accused and to witnesses, and I am quite prepared to go along with this, but l just wonder where this ends. Are we going to literally rewrite the whole of the criminal law and all the protections contained in there that Canadians have not only inherited from our British and common law jurisprudence, but that we have also achieved as a consequence of the evolution of our own law?

I just have to say, Mr. Chairman, that I could dream up an endless list of amendments if somebody said, “Draft a new Criminal Code,” but that is not what we are doing.

Now, I am not going to vote against that because, of course, it is a right. I just want people to realize that there is no way in the world a court in Canada could get away with compelling somebody to confess guilt, and I have no objection to it being here, I suppose. I have got no objection to imposing in here the whole of the common law and all its protections and all the criminal law, if we want to sit here for a couple of years. I just wondered how far Mr. Robinson is going to go on this.

Of course, the Canadian Bar Association is going to say “put this in” and “put that in”. If I was on the Committee, I would think of all kinds of things that ought to be there; but we will go along with this, but I am just saying to Mr. Robinson and to honourable members that there has got to be some kind of common sense in this thing because, if what Mr. Robinson is going to do is search the criminal law to find every right that exists and put it in by way of amendment, well then, maybe I should ask for an adjournment to go away for a couple of days to a law library and come back with my own version, because undoubtedly I could do it.

So, as I say, we will go along with this because of course, it is a right, but it should be clearly understood by everybody that it is a right and there is no way in the world that it can be taken away unless by the most extraordinary and draconian measures, and that applies to other rights so you get into the ground of how far we entrench in this constitution a vast array of rights and privileges which are already in law.

[Page 47]

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fraser.

I have the honourable Jake Ep on a point of order, and the honourable Minister of Justice.

Mr. Chrétien: I think I would like to make a statement at this time because it is quite important.

There are a series of those amendments in that clause and Mr. Fraser has just pointed out the problem, what the exercise is in the mind of Mr. Robinson is to write the Criminal Code in the Charter. This is not the name of the exercice, I do not go along.

It is clear that when you have a Charter it is the main rights of Canadians that are protected and there is a series of all sorts of legislation that is enacted after that, but if we have to accept every dream of a right that we have and confirmed in jurisprudence for generation and generation under the Criminal Code and someone wants to inscribe it in the Charter, it is no longer a Charter, it is a Criminal Code, and that is not the purpose of a Charter of Rights. It is to protect the basic rights of Canadians.

If we want to determine in the Charter of Rights the procedure of the criminal court in detail and so on, that is part of the Criminal Code.

Everyone is for motherhood, but the problem is that there is motherhood in some areas, and in other areas: here is this Charter of Rights, so when Mr. Fraser makes the argument that he goes along, I do not go along because it is our responsibility to respect the spirit of a Charter of Rights and the government has not asked the members of this Committee to rewrite the Criminal Code or to change it, that is not the role of the Committee; it is to establish a Bill of Rights and that is why I am saying that as we do not want to rewrite the Criminal Code, all the rest of the amendments are of the same nature, that any members of the Committee can dream up all sorts of things to put into the Charter and you look good, you look well informed and so on. You take the Criminal Code and translate it there.

There are how many clauses in the Criminal Code?

Mr. Ewaschuk: 700-odd.

Mr. Chrétien: 700. So we might have 700 clauses and look good.

An hon. Member: Some of them are fantasies.

Mr. Chrétien: Plus the ones that they invent. So that is good.

So I do think, I say on behalf of the government, I am for motherhood too, but it is the Charter of Rights we are writing, not the Criminal Code, and all the rest of those amendments on Clause 11 we cannot accept.

Mr. Epp: Point of order.

The Joint Chairman (Mr. Joyal): Mr. Minister, I am not sure that everyone around this table is for motherhood.

I would like to invite the honourable Jake Epp.

Mr. Epp: Point of order.

[Page 48]

Thank you, Mr. Chairman, on a point of order. In fact I found out there were some people around this table who were not even in favour of God.

However, I want to raise a point of order at this stage because I think both Mr. Fraser and the Minister led into a matter that I wanted to raise and was seeking an opportune time to do so, and I agree with the Minister, while he and I might disagree on many issues I agree with the point that he just finished making.

It comes down to the very heart of what a Charter should be, and I think many of us have had great fears that if you do not write everything into the Charter, now suddenly you are going to have less rights than you had before, and the point that I wanted to make, Mr. Chairman, is this:

We are working under extreme difficulty and I will not give any assessment to the amendments, our voting will be the judge of that, but the difficulty we are having is this: when I take a look at the New Democratic Party amendments, and there is a myriad of them, and I am finding out that they are getting great support from the government, they had moved before we started this session 18 amendments, 17 of which had been rejected by the government.

Mr. McGrath: So much for the cozy arrangement.

Mr. Epp: And one the government had accepted where it was changing “media of information” to “media of communication”. Both still are nebulous to me but I will accept that apparently it is better.

So I am just saying that what we try to do is bring forward a few substantive amendments where we thought we were in definite difference with the government, put it up front and we can judge it, but the question, the burden of what I am coming to, Mr. Chairman, is this:

We now have New Democratic Party amendments, as many as seven on one clause, namely Clause 11, and we have amendments now to Clause 14 but it is quite likely that if the arrangement still holds, and I see it getting frayed at times, but if the arrangement still holds into the weekend, that there is absolutely no way that we can prepare for New Democratic Party amendments that we will be looking at in subsequent sessions. We just do not have them, and if we are going to have seven amendments on a given clause it is just not a practical way to proceed.

No matter what our partisan stripe may be on this Committee, I think we generally agree on that point and the only way we can proceed is to have those amendments before us. I think they should put them forward in good faith …

Mr. Fraser: And give us reasonable notice.

Mr. Epp: Well, that is why I want them now.

Mr. Fraser: You mean promptly.

Mr. Epp: Without unreasonable delay. I would just urge our New Democratic Party colleagues to give us those amendments before this Committee arises from its evening session tonight?

[Page 49]

The Joint Chairman (Mr. Joyal): The honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

I do not know if you want to deal with the question of order, my remarks deal with the comments made by the Minister.

The Joint Chairman (Mr. Joyal): It was a point of order as raised by honourable Jake Epp but I remind you very respectfully that we are now discussing and debating an amendment and the Chair will have to call a vote and the point of order as raised by honourable Jake Epp is something that the Chair would like to call but after we have completed at least a vote on the motion.

I think otherwise we open a new debate on another subject outside a debate which should, as I have already said to the honourable member, should be restricted to confessed guilt.

Mr. McGrath: Call the New Democratic Party, they will confess their guilt.

The Joint Chairman (Mr. Joyal): Before I invite Mr. Nystrom to confess guilt I think that we should decide if we are to entrench that into our constitution, and after that I think Mr. Nystrom is certainly willing to give information and answer the request as put by Mr. Epp, but before I do so I would like really to invite honourable members to remain on the amendment that we are discussing, which is, as I mentioned, amending a paragraph by adding a part to it which would read

or to confess guilt

ou D’avouer sa culpabilité.

If you want to address yourself to that question I will invite you to do so, Mr. Crombie.

Mr. Crombie: Thank you, Mr. Chairman. I was only offering the Chair the opportunity to deal with the point of order if it wished to at that time.

My comment really relates to the amendment proposed by the New Democratic Party and the comment made in consequence by the Minister.

For those of us who are not lawyers or not engaged in practice of law or been involved much in it, it is difficult when we hear debates between politicians who are in another time and place lawyers, because, if you will forgive us, most of us can engage in sort of medieval cant if we wish so that other people cannot understand us and those of us who are not lawyers do not seek to intrude, particularly when we are dealing narrowly with legal rights.

Mr. Irwin: Urban planners.

Mr. Crombie: We feel like urban planners. We feel a little more comfortable in nonlegal rights, perhaps, but I think this is a good example, even for lay people, to see that there are things which if you take too far ultimately defeat the purpose of what we are doing here.

My understanding of legal rights, and I am sure it is shared by most people, is that we have had legal rights for many, many years, decades, centuries. Indeed, it is only when rights are taken away that we ought to pay attention because basically we have entrenched in our time, our history, our tradition,

[Page 50]

those rights. That is why we get very wary when we see things added because we are concerned that they restrict, as opposed to expand, our freedoms and our liberties.

In this particular example, Mr. Chairman, in a nice little book called The Constitution and What It Means Today it is not the same one, I have a quote from the other one but this is another one, it is called The Constitution and What It Means Today, it is the American Constitution, it says:

The source of the self incrimination clause …

the one we are dealing with right now:

The source of the self incrimination clause was from the maxim “that no man is bound to accuse himself”

Mr. Fraser: That was an English maxim.

Mr. Crombie: I have always admired your help, John. Mr. Chairman, I did not think it was Polish.

Then it goes on, Mr. Chairman, to quote it in Latin, which is even more complicated but it does …

An hon. Member: Read it.

Mr. Crombie: Nemo tenetur prodere—or Accusare—seipsum.

An hon. Member: Now that is Latin.

Mr. Crombie: That is a more mature Latin. Italian. At any rate, the reason I was reciting that is of course that is the common law tradition, so that clearly it is implied in the common law tradition that no man is bound to accuse himself. He cannot be compelled to convict himself, he cannot be compelled by anyone to convict himself.

If that is not good enough, in the other book, the citizens guide, the American tradition, which has had the law for many, many years, says quite clearly that the right against self-incrimination is especially important when we consider the custodial interrogation, et cetera, et cetera. It says the right has been extended through the due process of law, the basic assumption underlying the self-incrimination clause is this one that no one is obliged to provide answers to questions tending to convict oneself of a crime.

Now, Mr. Chairman, from the American tradition, which has had it for about 160 odd years, from Latin to old English to the common law, it is clear that no one is forced to convict themselves.

I submit with great respect to Mr. Robinson that what he has got to say is redundant and, what is worse to me, is that the more that is added in, I am going to get very, very worried that we have to get it all in because if it is not there we do not have those rights, and that is the problem.

The more that is added in that is redundant, the scarier it gets to make clear what is fundamentally important to legal tights in this country. So I not only think it is redundant, I think it is dangerous.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable David Crombie.

Honourable Senator Goldenberg.

[Page 51]

Senator Goldenberg: Mr. Chairman, I just wanted to add a word. As a member of the Bar for more than 48 years, which is even longer than Mr. Robinson’s membership in the British Columbia Bar, I just want to say thaf i agree entirely with what Mr. Fraser and the Minister have said and what Mr. Crombie, who should be a lawyer, has just expressed.

I think the amendment is completely unnecessary and I think it should be rejected. Thank you.

The Joint Chairman (Mr. Joyal): Merci, Senator Goldenberg.

Mr. Robinson to conclude.

Mr. Robinson: Mr. Chairman, I do want to conclude by making at least a brief reference to the comments of Mr. Fraser and the Minister with respect to the purpose of putting forward these amendments.

I understand the concern and I understand the impatience of my colleagues around this table, but it seems to me that we have certain obligations, not just to come up with a package which essentially contains fairly decent wording, but I think we have an obligation as members of this Committee to come up with a package which contains the best possible wording in this Charter of Rights.

Now, we are not talking about adding any major new rights, but what we are talking about is listening to witnesses which have appeared before us, listening carefully to their concerns, understanding that those witnesses reflect the concerns of many Canadians and that we as a Committee have a certain responsibility to reflect those concerns in the final wording.

That is all we are doing here, Mr. Chairman, and I reject the suggestion that somehow because we want to improve the wording, or to make clear the wocrding of some of these particular clauses, that we are wasting time or that we are doing anything that may be dangerous.

What we are talking about here is not adding any new rights; it is in reference to, for one thing, a document which has been considered fundamental by the community of nations and that is the International Covenant on Civil and Political Rights which, I submit, should guide this Committee in our deliberations.

It has been admitted by the Minister that that document is certainly of great persuasive value, and that, Mr. Chairman, and members of this Committee through you, Mr. Chairman, is why we are attempting to ensure that we have the best possible package for Canadians, That is the purpose of this amendment, quite simply, that while it may not be the case now that there is any suggestion that there can be a confession of guilt forced on a person, it may not always be that way and we are writing a Charter of Rights that may last for decades.

Surely, we have a responsibility to those Canadians who are watching these proceedings and who would be affected by this. We have a responsibility to ensure that it is worded as carefully and as accurately as possible.

[Page 52]

That, Mr. Chairman, is the purpose of this amendment and the purpose of the other amendments we will be proposing.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

The honourable James McGrath.

Mr. McGrath: I have a question for Mr. Robinson. I appreciate—and we all appreciate—that we should reflect the evidence which was presented to the Committee and should be careful to ensure that we come up with the best possible package. I would like to re-echo that concern.

My question to Mr. Robinson very simply is this. Will he and his colleague agree with us that we should extend the time of this Committee so that we would have time to come up with the best possible package, because 1 would submit that we do not have that time, given the time constraints placed upon us by the House.

The Joint Chairman (Mr. Joyal): I am sorry, Mr. Robinson, but I cannot invite you to answer. The question is not strictly within the amendment we have to vote on at this point.

I would invite the honourable James McGrath to ask his question at another time.

So we will now deal with the vote on the amendment.

Amendment negatived.

Mr. Epp: Mr. Chairman, I do not wish to press for any further indulgence from members of the Committee. I raised the point of order. I do not wish to see that point of order lost without discussion.

I would suggest that when we reconvene after the dinner hour that we look at the topic as the first order of business.

Mr. Irwin: Mr. Chairman, perhaps Mr. Nystrom and I could discuss the matter with him before 8 o’clock in the hope of resolving the matter without undue delay to the Committee.

The Joint Chairman (Mr. Joyal): Thank you very much. The Chair will certainly call back the honourable member at 8 o’clock when it will be resuming its consideration of the proposed motion.

[Translation]

The meeting is adjourned until 8:00 tonight.

[Text]

EVENING SITTING

The Joint Chairman (Mr. Joyal): May I request honourable members to take their seats so that we could resume consideration of the proposed resolution on Clause 11 (d).

On that very clause, I would like honourable members to take the text of the proposed motion moved by the government party, and the motion is identified as G-14, Clause 11 (d), page 5.

I would like to invite Mr. Irwin to move the said motion.

Mr. Irwin: Thank you very much, Mr. Chairman.

[Page 53]

The amendment would apply the tests of “just cause” or onus on any denial of bail.

I would move that Clause 11 of the proposed constitution act, 1980 be amended by striking out lines 16 to 18 on page 5 and substituting the following:

(d) not to be denied reasonable bail without just cause;

En français. Il est proposé

Que l’article 11 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 15 à 20, de ce qui suit:

The Joint Chairman (Mr. Joyal): I would suggest that there is …

Mr. Irwin: A typographical error?

The Joint Chairman (Mr. Joyal): Yes. It is 15 à 19 et non pas 15 à 20.

There is an error there.

[Translation]

Mr. Irwin: Thank you, Mr. Chairman.

[Text]

«d) de ne pas etre prive sans juste cause d’une mise en liberte assortie d’un cautionnement raisonnable;»

The Joint Chairman (Mr. Joyal): Merci, Mr. Irwin.

I do not see any speaker on the proposed amendment. The honourable James McGrath.

Mr. McGrath: Mr. Chairman, could the Minister explain the change, please?

The Joint Chairman (Mr. Joyal): Certainly May I call on the honourable the Minister of Justice to give the proper explanation under the amendment.

[Translation]

Mr. Chrétien: Mr. Chairman.

On several occasions in the course of your proceedings before the clause by clause consideration, several groups have argued that the draft that we had before us and that only stated “except on grounds, and in accordance with procedures, established by law” was much more too restrictive and that we should ensure in a more explicit way this citizens’ right. This is why we have changed the wording to “without just cause”.

[Text]

The Joint Chairman (Mr. Joyal): The honourable James McGrath.

Mr. McGrath: That is a satisfactory explanation, Mr. Chairman.

The Joint Chairman (Mr. Joyal): I see that honourable members are ready for the vote.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to take the next amendment numbered G-15, Clause 11, new paragraph after Clause 11(d), page 5.

I would like to invite honourable members at the same time to have the next amendment, the one numbered N-15, Clause 11, new paragraph after Clause 11 (d), page 5; that last one is an amendment moved by the New Democratic Party and is a subamendment to the main amendment.

[Page 54]

So I would like to invite honourable members to have both amendments at the same time.

I will repeat the identification. There are two amendments which I would like to invite honourable members to have: the one numbered G-15, Clause 11, new paragraph after 11 (d), page 5, and the second is numbered N-15, Clause 11, new paragraph after 11 (d), page 5, and the second one is a subamendment to the first one.

I would like to invite, first, Mr. Irwin to introduce and move the first amendment, and then I will invite Mr. Robinson to move and make the usual comments on the subamendment.

Mr. Irwin.

Mr. Irwin: Thank you very much, Mr. Chairman.

This amendment provides for trial by jury with certain exceptions set out.

I wish to move that Clause 11 of the proposed constitution act, 1980 be amended by (a) adding immediately after line 18 on page 5 the following:

(e) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(b) relettering the subsequent paragraph accordingly.

En français. Il est proposé

Que l’article 11 du projet de Loi constitutionnelle de 1980 soit modifié par:

a) adjonction, après la ligne 19, page 5, de ce qui suit:

«e) sauf s’il s’agit d’une infraction relevant de la justice militaire, de bénéficier d’un procès avec jury lorsque la peine maximale prévue pour l’infraction dont il est accusé est un emprisonnement de cinq ans ou une peine plus grave;»

b) les changements de numéros d’alinéa qui en découlent.

The Joint Chairman (Mr. Joyal): Thank you Mr. Irwin.

I would like to invite Mr. Robinson to move the subamendment.

Mr. Robinson: Mr. Chairman, the subamendment reads as follows. I move that the proposed amendment to Clause 11 of the proposed constitution act, 1980 be amended by striking out the words “five years” in the proposed new Clause ll(e) and substituting the following:

Two years.

Et en français, il est proposé

Que le projet de modification de l’article 11 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux mots «cinq ans», de ce qui suit:

«deux ans».

[Page 55]

Certainly, I welcome the proposal of the government to include in the proposed Charter of Rights the right to trial by jury. This is a fundamental right which Canadians have taken for granted for many years, and I appreciate the fact that the Minister has listened to the representations of a number of groups and individuals on this very important question.

It was, I think, recognized as early as Blackstone, in Blackstone’s Commentaries that the fundamental importance of the right to trial by jury—and I would quote very brieny from Blackstone’s Commentaries:

The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the great charter.

That is the Magna Carta.

And, Mr. Chairman, just another brief excerpt from the Law Reform Commission of Canada. That Commission referred to the trial by jury as a fundamental institution in Canadian jurisprudence, what they called the veritable rock of ages in our system of criminal justice in Canada.

So, Mr. Chairman, as I say I welcome the decision of the Government to include a specific reference to trial by jury in the proposal.

The amendment would extend the right to trial by jury which is referred to in the new Clause 11(e) to all offences to which a person is subjected to a period of imprisonment of two years or more as opposed to the present five years or more.

The purpose of this is to recognize the fundamental importance of this right to trial by an impartial jury of one’s peers and to extend that right to offences for which an accused is subject to imprisonment for two years or more, recognizing that that kind of offence is one in which an accused should be given an opportunity to opt for trial by jury.

As I say, we welcome the proposed amendment, but would suggest that it go further and should apply to offences where imprisonment for two years or more is the penalty in question. Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

The honourable Jake Epp.

Mr. Epp: I would like to ask the Minister two questions: one, the amendment that the Minister has put forward—would that amendment in fact increase the number of cases which would go to the jury instead of the prbsent practice?

Mr. Chrétien: No, I do not think so.

Mr. Ewaschuk: We do not have the numbers. But it could affect an increase in the volume in jury trials.

If you start viewing the indictable offences in the Criminal Code as a Jacob’s ladder and go from the top of the ladder, then you have life imprisonment, then 14 years, 10 years, 5

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years—and the most minimal type of indictable trial is the two year trial.

So, obviously, having practised in the courts, you know people do not go to jail automatically for two years for a two year offence. Breaking and entering a dwelling house is a life offence, and most young offenders almost invariably get probation for that.

It is the rare case where you go to jail for this type of minimal offence.

We have identified as far as the five year offence is concerned, the problems which would be created with that; for example, under the Combines Act, if you have a corporation that is involved in a combines; in 1976 the penalty was increased to five years; but the Combines Investigation Act itself says a corporate accused is not entitled to a jury trial. This, in fact, would call for the amendment of that act.

In Section 483 of the Criminal Code we have a bunch of offences some of which are theft, possession, false pretences, fraud under $200 where the Crown goes by indictment and there is no jury trial and the top end is two years.

There are other offences—and I have a list here; keeping a common gaming house, betting house, various types of bookmaking, lotteries, games of chance, betting for a consideration, driving while suspended, where the Crown goes by indictment, fraud in relation to fares—those offences, then, traditionally there has been no right of jury trial, and the right to jury trial would be allowed for all those two year offences.

Our concern was not to overly inconvenience the courts. Jury trials are much slower, and civilians have to be brought in and they have to sit, and panels have to be selected.

A decision was made that it was reasonable for five years, that, given the fact that people, as we have said, do not go to jail that often for two year offences, that there you have more discharges than fines, that it really was not required in that type of case.

Mr. Epp: I appreciate, Mr. Chairman, that very complete answer.

Do I take it from you sir, then that the five years you feel even in that case there would be an increase in jury trials? Obviously, you do not have a reading as to how many; that there could or likely would be an added cost factor on the provincial treasury even with the five years. Is that correct?

Mr. Ewaschuk: It would be very marginal in the five year offences situation; there as a general rule—there is the odd exception—jury trials are provided for.

Mr. Epp: And the two years would obviously increase it substantially as well and plug up the system and you would have not only to spend more money on the system, but also to enlarge the system. Is that correct?

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Mr. Ewaschuk: Yes.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp. I do not see any more speakers on that proposed amendment.

I would like to invite Mr. Robinson to conclude.

Mr. Robinson: Well, Mr. Chairman, the only argument we have heard against this is that it might tend to clog the court system and that it might cost a little more.

But we are talking about a fundamental right of Canadians. would suggest that to extend that fundamental right in the case of offences to which an accused is subject to imprisonment for more than two years it is strictly an option; and Mr. Ewaschuk will agree that in many cases that option would be bypassed just as the option of trial by jury is bypassed now in the case of many other offences.

I do not propose to belabour the point, Mr. Chairman. I think it is a right which is so fundamental and important that it should be extended to the two years.

I would like to conclude by quoting from Sir Patrick Devlin on the fundamental importance of the jury.

Sir Patrick Devlin said, really pointing out that the jury is the citizen’s ultimate protection against oppressive laws and oppressive enforcement of the law;

Every jury is a little parliament. The jury sense is the parliamentary sense. I cannot see the one dying and the other surviving. The first object of any tyrant in Whitehall would be to make Parliament truly subservient to his will and the next to everthrow and diminish trial by jury, for no tyrant can afford to leave the subject’s freedom in the hands of 12 of his countrymen; so that trial by jury is more than an instrument of justice and more than one wheel of the constitution. It is the lamp that shows that freedom lives.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

Subamendment negatived.

The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to come back on the main amendment.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to take the next amendment numbered G-16,pause 11(e), page 5.

The Chair has been informed there has been another amendment, the one identified as CP-6, Clause 11(e), page 5.

In the opinion of the Chair, both amendments are of a similar nature. I would like to invite the honourable Jake Epp to move the amendment numbered CP-6, Clause 11(e), page 5.

Mr. Epp: Thank you very much, Mr. Chairman.

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I would like to move that Clause 11 of the proposed constitution act, 1980 be amended by striking out lines 19 to 22 on page 5 and substituting the following:

(e) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

I would like to ask Senator Tremblay to do it en français.

[Translation]

The Joint Chairman (Mr. Joyal): The Honourable Senator Tremblay.

Senator Tremblay: Mr. Chairman, it is proposed by my colleague, Mr. Epp.

[Text]

Que le projet de modification de l’article 11 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à l’alinéa e), de ce qui suit:

«e) de ne pas être déclaré coupable en raison d’une action ou d’une omission qui, au moment où elle est survenue, ne constituait pas une infraction d’après le droit interne du Canada ou le droit international, et n’avait pas de caractère criminel d’après les principes généraux de droit reconnus par !’ensemble des nations.»

The Joint Chairman (Mr. Joyal): The honourable Jake Epp.

Mr. Epp: Mr. Chairman, this amendment has been forward not by myself, but by my colleague, Mr. Crombie. He has done a Jot of work on it, and I notice that the government has endorsed the position we have taken.

But I would ask, as a matter of courtesy to Mr. Crombie, who has another engagement whether we could stand the amendment for a few minutes, so that he could have an opportunity to put a few words on the record and we could then dispose of the amendment.

Mr. Chrétien: If I may say so, in order to save time, this motion was presented by the government too. We, too, support it, and we have our own amendment. As a matter of convenience, we would be happy to accept the amendment of Mr. Crombie. It is exactly the same as ours. I would dispose of it in that way. It would save time. We are ready to vote.

Mr. Epp: Mr. Chairman, I thank the Minister for his courtesy.

I would just like to point out that, for fear that we do not get a repeat of another week, I would like to speak to it just for a moment.

All of us have been concerned that our Bill of Rights would reflect not only Canadian practice and Canadian heritage, but as well our obligations to the international community and specifically as it relates to war criminals.

I know the Jewish Students Association and the Canadian Jewish Congress have put forward amendments along these lines. 1 think it is a better reflection, not only on our Canadian traditions, but also on our obligations internationally and I commend, obviously, the amendment to all members.

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The Joint Chairman (Mr. Joyal): Thank you very much, honourable Jake Epp.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, I just wanted to very briefly associate myself with the remarks of Mr. Epp and to indicate that we fully support this amendment, that we would certainly have moved a similar amendment ourselves had we not recognized that it was being proposed by the Conservative Party. We are pleased to endorse it and I do not think that I should let this opportunity go by without paying particular tribute to Mr. Ken Narvey who has attended, I think, virtually all sessions of this Committee and has in some cases, pestered and badgered and beleagured members of the Committee and, I know, members of the Department on behalf of his constituency. He has done an outstanding job in reflecting the views of his constituency, of the Jewish Students Federation and ensuring that this Committee will recognize that Nazi war criminals must be brought to justice wherever they live, including in Canada. So we strongly support the amendment which is brought forward.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

Mr. Irwin.

Mr. Irwin: So there is no misconception on this, Mr. Chairman, the clause does not prevent the prosecution of war criminals. By itself it does not do that. It does not stand in the way of the prosecution, but by itself it does not allow the prosecution. What it does is allow enabling legislation if the Parliament sees fit, so I think that should be clear.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Irwin. I see that the honourable members are ready for the question.

Amendment agreed to.

I would like to invite then honourable members to take the next amendment, amendment related to Clause 11(f), and it is the amendment numbered G-17, Clause 11(f), page 5, and invite them at the very moment to take the next amendment, it is the subamendment to the main one, as we had dealt with previously. It is numbered N-16, Clause 11(f), page 5.

I would like first to invite Mr. Irwin to move, or Mr. Corbin.

Mr. Irwin: That is G-17?

The Joint Chairman (Mr. Joyal): Yes, G-17 is the main amendment, and the subamendment is numbered N-16.

Mr. Irwin: Thank you, Mr. Chairman. Mr. Corbin will be handling that.

[Translation]

The Joint Chairman (Mr. Joyal): Mr. Corbin.

Mr. Corbin: If I understood you well, Mr. Chairman, you have called …

The Joint Chairman (Mr. Joyal): G-17.

Mr. Corbin: G-17.

The Joint Chairman (Mr. Joyal): G-17 and N-16.

Mr. Corbin: Mr. Chairman, it is proposed

[Page 60]

[Text]

Que l’article 11 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 24 à 26, page 5, de ce qui suit:

«f) d’une part de ne pas être jugé de nouveau pour une infraction dont il a été définitivement acquitté, d’autre part de ne pas être jugé ni puni de nouveau pour une infraction dont il a été définitivement trouvé coupable et puni;»

Mr. Chairman, I move that Clause 11 of the proposed constitution act, 1980 be amended by striking out lines 23 to 25 on page 5 and subtituting the following:

(f) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Corbin.

I would invite Mr. Robinson to propose the amendment in question in the usual manner.

Mr. Robinson: Thank you, Mr. Chairman.

The amendment is as follows. It is proposed

[Text]

Que le projet de modification de l’article 11 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux mots «ni puni de nouveau pour une infraction», de ce qui suit:

«ni puni de nouveau pour une action ou une omission constituant l’infraction;»

In English, Mr. Chairman, it is moved:

That the proposed amendment to Clause 11 of the proposed constitution act, 1980 be amended by striking out the words “found guilty and punished for the offence” in the amendment to clause 11 (f) and substituting the following:

found guilty of and punished for any act or omission constituting the offence;

Mr. Chairman, the purpose of this particular amendment is to retlect in the Charter the representations which have been made to us by a number of groups who are concerned that the development of the law in Canada be accurately retlected in dealing with this particular clause on the subject of what amounts to double jeopardy.

That law was, I guess, most recently enunciated in a definitive way in the Supreme Court of Canada decision in Kienapple. I would refer to the brief of the Canadian Jewish Congress in supporting this amendment:

The Committee is of the opirlion that Clause 11 (f) is far too narrow and that it offers no protection against double jeopardy for related offences or offences substantially the same as the principle offence. Nor does the clause prevent the Crown from unreasonably splitting the case.

The Committee accordingly recommends that the word “offence” in Clause 11 (f) be replaced by the words “acts giving rise to an offence”.

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Mr. Chairman, I believe that their argument is persuasive. I believe that this Charter should reflect the broader definition of the principle of double jeopardy which presently exists in Canadian law, and it is for that reason that the amendment is proposed.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

Mr. Robinson: Is the Minister present?

Mr. Ewaschuk: He has asked me to reply, Mr. Robinson.

The Joint Chairman (Mr. Joyal): I would then invite the officer of the Department of Justice to reply.

Mr. Ewaschuk: In relation to the question of double jeopardy, the Supreme Court of Canada in the Kienapple case characterized it as res judicata and certainly not double jeopardy.

In that particular case, Mr. Kienapple had raped a 13-year old girl so he was sentenced to 10 years imprisonment for the rape, and the fact that the girl was under 14 then, he also had been charged and convicted with having sexual intercourse with a female under 14, what used to be called “carnal knowledge”, and he was given a concurrent sentence of 10 years; so in effect he was not punished twice, but he was convicted twice.

It went to the Supreme Court of Canada and five to four in that judgment, the Chief Justice enunciated this doctrine of res judicata saying that where there was the same delict involved, which is in fact the sexual intercourse with the girl as well as being non-consensual, as well as the fact that she is under this particular age, then in fact he should not be convicted twice for the same act. That is the rule in Kienapple.

Now, I had the pleasure of arguing a case, again from British Columbia called Sheppe, and we punched out on the computer how many recorded cases there are in Canada since that time on what does Kienapple really mean. Suppose in fact, that man had, when he raped the girl, or the woman, he also had a knife and he wounded her and then he stole her purse, can you then in fact convict him of the rape, the wounding and the robbery?

The difficulty of application of this case had given rise at that particular point, some six months ago or so, of over 60 reported cases. I guess what we are saying is that it is a very difficult doctrine to apply, what does it really mean? Quite clearly, the Criminal Code right now says that once you are convicted or acquitted, you are acquitted or convicted of all included offences which are lesser offences and also greater offences because of certain stances of aggravation within that line.

So it is only where, in fact, in the rare case there may be a severance of counts or something justifying that, that you may be in jeopardy later on for another offence arising out of the same transaction but which, in fact, is not the same physical transaction.

I guess what we are saying is that it is a very fuzzy doctrine, hard to apply, and we do not see that in fact it is something that should be put in the Charter. It is certainly not in the

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American Charter. It is not in the Charter of the International Covenant. We do not see the need to put it in the Charter at this particular time. It is something evolving, fairly new, it is evolving, and until the courts have finally put it to rest as to what it exactly means, we do not know in fact what it exactly means.

The Joint Chairman (Mr. Joyal): Thank you. I see that maybe Mr. Robinson wants to conclude on the proposed motion.

Mr. Hawkes?

Mr. Hawkes: May I just ask the Minister’s officials, the wording is “guilty of and punished for” in both the original amendment and the proposed revision.

Does that wording and the past tense of the word “punished” in particular, does that imply that during the course of punishment that in fact a new trial can be ordered?

Does that really mean that the punishment must be concluded? Is that the intent of the government and is that what the words indicate?

Mr. Ewaschuk: No, the words “finally found guilty”, we have come up again in 1972 with a new sentencing concept of discharges, so you may be found guilty, but there is no conviction registered, and you are given a discharge for records purposes. It helps the offender for certain “offences. So we have got away from the word offenced”. We have replaced it with “found guilty”. That is one consideration.

The other consideration in relation to punishment, and again this dealt more with the question of the war criminals, was that there have been certain instances where war criminals have in fact been found guilty in European countries and have been sentenced ex parte or in absentia and have not discharged their punishment, so that is why we put the expression in there “finally found guilty and punished”, so that if in fact, you had a war criminal here in Canada and if Canada had jurisdiction, assuming then that the war criminal had not been punished in the European country, then Canada would have jurisdiction to try that person and punish him here, because he had not been finally punished.

Mr. Hawkes: So the jeopardy continues until the punishment is complete. That is your intent and that is what says.

Mr. Ewaschuk: Where you are found guilty, but obviously, if you have been acquitted then you were in jeopardy and cannot be tried again.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Hawkes.

The honourable John Fraser.

Mr. Fraser: Just so that ordinary people can understand this interesting exchange, let me try to put it in simple terms. Suppose an accused assaults and beats up his victim and also steals his wallet. Now, those are two offences, assault and theft. Would this provision mean that he could not be charged with assault and theft?

Mr. Ewaschuk: In that particular case, and you are picking a bad example …

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Mr. Fraser: No, no, I am picking a good example.

Mr. Ewaschuk: I know where you are going because in Section 302 robbery is a compount offence comprised of an assault and a theft, so it is a theft where you have an assault; so in your particular example the charge would be robbery rather than one count of assault and one count of theft. You are put in jeopardy for both the assault and the theft aspect and you must be either convicted of robbery or, if not, convicted of assault or convicted of theft, or nothing, virtually, so that is all the same ladder.

Where Mr. Robinson’s doctrine would come in, the rule against double conviction, would be virtually you have a course of conduct. There may be different offences but not directly related to the same transaction; and the difficulty, and I think I go back to my explanation that I used to use when I was teaching law school, that in fact it is where there is a robbery but there is a wounding at the same time and a rape, where you have different lines of definitional elements of those offences.

Now, is there one common delict in that case, and I think the Supreme Court of Canada would say no. There are cases saying, what about if a man is driving while impaired but he is also suspended. The gravamen of the offence is driving, and he is impaired, but he is suspended. They said Kienapple does not apply there. It is a very difficult doctrine to apply, really. I guess that is my point.

Mr. Fraser: Just again to clarify, suppose a group of people decide to break a safe that is contained inside enclosed quarters. They have conspired to rob the safe. One of them knocks over the night watchman and kills him. They of course all could be charged with murder( but then they go on and they also rob the safe.

Can they be charged for both robbery and murder?

Mr. Ewaschuk: They can be, but they cannot at this particular time by virtue of Section 519 of the Criminal Code be tried at the same time, and I think the Minister is considering whether or not we should in fact allow for the murder and the robbery to be tried in one offence as opposed to having separate trials.

Mr. Fraser: My time is running out but my difficulty is Mr. Robinson’s amendment says:

found guilty of an punished for any act or omission constituting the offence;

I am puzzled as to whether, if a conviction was obtained for the theft and later the evidence was available to charge with the murder, the conviction of theft would mean, under Mr. Robinson’s proposal, that he could not be charged subsequently with murder.

Mr. Ewaschuk: It could be. I do not think at this time the courts would in fact interpret it that way but it has, as I say, in numerous occasions involved, it has given rise to all kinds of complications. Before in fact it used to be construed as double punishment In other words, you punished him for the more serious offence and then if he were convicted of the others you

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gave him concurrent time, so there was no problem in that application. That was the rule against double punishment, so called. It was converted into the rule against double conviction. That is when the interpretive problems started.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Fraser. Mr. Robinson, to conclude on the proposed motion.

Mr. Robinson: Yes, Mr. Chairman. I really do not have very much to add to my initial comments. As I say this was a concern which was expressed by a number of witnesses and one which I recognize and is an evolving concept in Canadian law, as Mr. Ewaschuk has pointed out, but I do believe it is a fundamental principle that just as the whole concept of fundamental justice is an entirely novel concept in Canadian law that we should also recognize that no Canadian should be subjected to punishment twice for essentially the same act and that the wording in Clause 11 (f) as it stands now would not clearly proscribe that possibility.

It is for that reason, Mr. Chairman, that the amendment is proposed.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson. I see that honourable members are ready for the vote.

Subamendment negatived.

I would like then to invite honourable members on the main amendment, the one proposed by Mr. Irwin.

Amend agreed to.

I would like then to invite honourable members to take the amendments dealing with Clause 11 (g), the first amendment that I would like to invite honourable members to take is number G-18, Clause 11 (g), page 5, and invite Mr. Irwin to move the amendment in the usual way.

Mr. Irwin: Thank you, Mr. Chairman.

This amendment is self-explanatory. I wish to move that the English version of Clause 11 of the proposed Constitution act, 1980 be amended by striking out lines 26 to 30 on page 5 and substituting the following:

(g) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

En français. Il est proposé

Que la version anglaise de l’article 11 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 26 à 30, page 5, de ce qui suit:

“g) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.”

Thank you, Mr. Chairman.

An hon. Member: Is that the French version?

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[Translation]

Mr. Irwin: I speak French with an English accent.

[Text]

The Joint Chairman (Mr. Joyal): I understand that It IS only the English version that is involved in the amendment.

I realize, too, that there is a subamendment in the same context we dealt previously in relation with Clause 11 (f) and I would like to invite Mr. Robinson to move the subamendment. The subamendment in numbered N-17, Clause 11 (g), page 5.

I would like to invite honourable members to have both amendments at the same time.

Mr. Robinson: Thank you, Mr. Chairman.

I move the following amendment to new Clause 11(g), that the proposed amendment to Clause 11 of the proposed constitution act, 1980 be amended by striking out the words “between the time of commission and the time of sentencing”, in the amendment to Clause 11 (g) and substituting the following:

after the time of commission;

Et en français, il est proposé

Que l’alinéa 11g) de la version française du projet de Loi constitutionnelle de 1980 soit modifié par substitution, au nombre de phrase «entre le moment de la perpetration de l’infraction et celui de la sentence», de ce qui suit:

«après le moment de la perpétration de l’infraction.»

Mr. Chairman, I think I would just like to read Clause 11 (g) as it would read if amended as I am proposing. It would read:

(g) if found guilty of the offence and if the punishment for the offence has been varied after the time of commission … to the benefit of the lesser punishment.

Mr. Chairman, the purpose of this amendment, again which has been proposed by a number of witnesses appearing before the Committee, is the following:

Article 15 of the International Covenant on Civil and Political Rights very clearly states that if, and I am now reading from Article 15, if subsequent to the commission of the offence provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

Now, surely, Mr. Chairman, that is a fundamental principle which should be recognized in the Charter, that it should not just be the period of time between the time that a person is charged with an offence, or between the commission of offence, and the sentencing for that offence, that they are to be given the benefit of the lesser punishment; but if, while they are serving their sentence, for example, the Parliament decides there is a lesser penalty which is more appropriate for that particular offence, that they should be eligible for that lesser penalty.

As the clause is now worded, Mr. Chairman, that option would end the moment the person was sentenced. I would like to give you an example of how this would apply, Mr. Chairman, in the case of the seven year minimum for trafficking and importing of drugs. That is a sentence which has been held to be cruel and unusual punishment at a lower level and which has been condemned by the Canadian Bar Association and others.

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If the Justice Department decides to reduce that sentence to a lower sentence, then surely those people who have been convicted and who are presently serving time should be given the benefit of that lesser sentence. That is the purpose, Mr. Chairman, of the amendment to extend that benefit across the board to those persons who are presently subject to a penalty which is more severe than that which Parliament in its wisdom has decided should be the case. It would bring us into conformity with the International Covenant and it would also, Mr. Chairman, recognize what I believe is an important principle and one that should be recognized in the Charter of Rights.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

[Translation]

The Honourable Senator Tremblay.

Senator Tremblay: Excuse me, Mr. Chairman, but I am referring again to the language used in the French version, the term “perpetration de l’infraction”.

It often happens that translators are afraid to use French words resembling English ones. I imagine that the translators have tried to avoid the word “commission” thinking that it would not be the proper word in French.

But, I think this is indeed the proper word, so I suggest to the mover of the amendment to replace the word “perpetration” by the word “commission” since it seems to be the word to use in this context.

[Text]

Mr. Robinson: Mr. Chairman, I am certainly quite prepared to accept that amendment proposed by Senator Tremblay if that would more accurately reflect the intention.

[Translation]

The Joint Chairman (Mr. Joyal): It is an adjustment. The Honourable Senator Asselin.

Senator Asselin: I would like some information from the department’s advisers.

Would the proposed amendment not, in fact, replace an existing act.

When someone is convicted, he has to serve a specific sentence. To get remission of his sentence, he must apply under the Parole Act. Is the amendment proposed by Mr. Robinson not contemplating a remission of sentence?

[Text]

Mr. Ewaschuk: Part of the problem is whether or not Mr. Robinson is in fact interpreting Article 15 of the International Covenant properly. I guess our difficulty in reading this section is that we feel it is ambiguous because it ‘says “if subsequent to the commission of the offence”, it does not say date of sentence, it does not say after the date of sentence, it just says if subsequent to the commission of the offence provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

Now, if you have totally discharged the offence, it was $500 and they dropped the penalty down to $100, three years later

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do you have to give him back the $400? There was some difficulty in that application. Even Mr. Robinson’s example of the seven year minimum. Now, if the seven year minimum for importation of heroin is dropped but the life maximum is left, does that mean because the person got seven years just because the minimum is gone, the maximum remains more than seven years, must he perforce, even under Mr. Robinson’s suggestion, get out?

The penalty in fact has not been lowered, the minimum has been lowered but the maximum is still more than seven years.

The problem is moreso, as Mr. Strayer just pointed out, what if he in fact has discharged those seven years in jail. So I think our thinking in here was, yes, he should get the benefit of the lower penalty in that we do not want judges looking ahead and saying, well, the penalty is going down so I will give him more now, I will give him just the maximum. So anticipating this we felt that the only workable way was that he gets the benefit of the lower penalty between time of commission and time of sentence but not after the sentence.

Senator Asselin: Not after sentencing?

Mr. Ewaschuk: No.

The Joint Chairman (Mr. Joyal): The honourable John Fraser followed by Mr. Hawkes.

Mr. Fraser: I do not want to labour this but what I am concerned about is this: suppose you hae an offence, and I know it is complicated by minimum and maximum sentences, but again to simplify it, and I know law professors and lawyers never want to simplify anything, and it is more complicated when law professors become justice lawyers, but suppose you had an offence in which the penalty was 25 years imprisonment, and suppose in its wisdom felt that that was just not fair anymore but somebody has been charged, found guilty and sentenced to 25 years. Now, if 10 years later the Parliament says that that particular offence ought only to have a 10 year sentence. Now, that is after the sentencing and yet it seems to me contrary to the will of Parliament to continue the 25 year sentence at that point, and I think that is what Mr. Robinson is getting at.

Now, can we not find a way through this because I see a real problem there. You are going to tell me: well. you are picking a simple situation there.

Mr. Ewaschuk: In fact Parliament can deal with it. They are not precluded from dealing with it and they often do deal with it.

First of all, he has been sentenced to 25 years, he is eligible for parole after four so he probably will have made parole by 10, but if he is still in there, as I understand and I have seen some of these examples in the past, what is done is the Parole Board are given special powers and they are told to examine each and every case to see whether or not the person goes out at that particular time.

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So I am saying that Parliament can meet the particular situation given certain llexibilities in that, but if you say that after the sentence it is going to take place, first of all the person committed the offence at the time the penalty was such, but now that the penalty is lowered the judge imposes the penalty taking in view antecedents of the offender, what he did, giving him the benefit of the lower penalty.

Now, then you go to the third stage and he gets the benefit of still lower penalties after the fact, and in that case I say administratively the only way it can be handled is through the Parole Board.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fraser.

Mr. Hawkes.

Mr. Hawkes: Just a brief question for the officials.

If you have a situation where the sentence was five to ten years, and if we accepted Mr. Robinson’s amendment and subsequently the penalty was changed from two to ten, administratively if someone was in jail serving, say, a five year sentence, what kind of procedure would be involved in them petitioning to have this sentence lowered to this new minimum? Would that be a cumbersome kind of problem?

Mr. Ewaschuk: Well, it would be reviewed by the Parole Board but we do not have those sentences in Canada, that is a California model where you would go in for a minimum of two up to ten and even California has rejected that in the last five years or so.

It is just a question, I think, we have to keep in mind the top end. Rarely does the person for a 10 year offence ever get close to 10 years, so he would only get the benefit of whatever the maximum would go down, the compression, so it is very rare where you would get a person—probably the worst offence, worst offender type where something has gone down from ten years to five years and five years later he would still be in jail for that offence, so we say it is so exceptional that in fact the Parole Board should look at those cases.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Hawkes. Mr. Robinson to conclude.

Mr. Robinson: Mr. Chairman, just to conclude, I would just like to remind honourable members that the Parole Board’s authority has been termed by at least one eminent Canadian jurist as being tyrannical, to say the least, and that to suggest that persons who are in our present system should be subjected to that particular authority and that particular discretion, I suggest, is a mistake, that there should be a reference, a specific explicit reference as there is in the covenant.

There is no ambiguity about that. Mr. Ewaschuk says: well, it is not clear whether they are referring to the time between the commission of the offence and the sentence. Well, there is no reference to any limitation on that so clearly they are referring to the time after the sentence, exactly as they say.

I would like to point out, Mr. Chairman, that Canada is presently being called before the United Nations Human Rights Committee on a complaint involving some 800 prison-

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ers who are claiming that Canada violated this very provision of the International Covenant on Civil and Political Rights, that they are being detained far longer than they should be. So it is not an academic question, it is one which is very real, at least to some hundreds of prisoners in Canadian society, that complaint has been ruled admissable.

I suggest, Mr. Chairman, that the spirit of the covenant should be carried out and that this amendment should be supported to ensure that justice to all persons, not just persons who are between the moment of the commission of an offence and sentencing.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

Subamendment negatived.

The Joint Chairman (Mr. Joyal): I would then invite honourable members to come back on the main amendment.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to take the next amendment, it is the amendment numbered N-18, Clause 11, new paragraph after 11 (g), page 5. it is an amendment moved by the New Democratic Party, Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

This is the final amendment which we are proposing to Clause 11 of the proposed charter of rights and I would move as follows, the addition of the two following subsections.

I move that Clause 11 of the proposed constitution act, 1980, be amended by (a) striking out the word “and” at the end of paragraph 11 (f) on page 5 and adding immediately after line 30 on page 5 the following:

(h) to be confronted with prosecution witnesses;

and (b) adding immediately thereafter the following paragraph:

(1) to have compulsory process to obtain witnesses

Mr. Chairman, I pause to suggest that we deal with both additions as one amendment if that is acceptable.

En français, il est proposé

Que l’article 11 du projet de Loi constitutionnelle de 1980 soit modifié par;

a) adjonction, après l’alinéa 11f), page 5, de ce qui suit:

«h) d’etre confronte avec les temoins a charge;»

b) adjonction, après le nouvel alinéa précédent, de ce qui suit:

«i) d’obtenir la présence obligatoire de témoins.»

Mr. Chairman, the purpose of the proposed two subclauses to Clause 11 is to make complete what I consider to be the fundamental rights of a person who is charged with a criminal offence. It is not good enough to suggest that a person has the right to be presumed innocent and the other rights which are contained, the right to trial by jury and so on, if in the course

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of criminal proceedings that person does not have the right to bring witnesses before the court to present that person’s case. Also the fundamental right to cross-examine the witnesses of the prosecution.

That, very simply speaking, is the purpose of this amendment, Mr. Chairman. Again, these rights are not just something which are taken out of the Criminal Code to impose the Criminal Code in the Charter of Rights. These are rights which if any rights could be considered fundamental within the criminal justice system, surely these must be considered fundamental. I would point to the fact, Mr. Chairman, that these are the rights and some of the only rights which are included not only in the United States Bill of Rights, in Article 6, but also in the International Covenant on Civil and Political Rights in Article 14 (3) but in addition they are included in the European Convention on Human Rights and the American Convention on Human Rights.

So these are fundamental human rights which, as I suggest, should be accorded to enable the other rights to be fully exercised. It is not good enough to say that these are contained within the Criminal Code or within various evidence acts because what is here today could possibly be taken away tomorrow and we are talking, as I say, about a charter which should stand the test of time, which should constitute a recongition of the basic principles which protect those persons who are accused of criminal offences.

That is the prupose of this particular proposed addition of Clause 11 (h) and Clause 11 (1), Mr. Chairman.

As I say, quite simply, how can a person possibly defend himself or herself against a criminal offence if they cannot subpoena witnesses to appear on their behalf and if they cannot adequately cross-examine the prosecution witnesses.

I invite Committee members to support this very important amendment.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

Honourable John Fraser.

Mr. Fraser: I do not quarrel with the spirit of what Mr. Robinson is getting at, Mr. Minister, but through you to your officials, I have been in a number of criminal courts, both prosecuting and defending, and I cannot for the life of me think of any time when an accused or the accused’s counsel has even been denied the right to cross-examine a Crown witness. lt is fundamental to our law.

There may be cases that I am unaware of, but I have never seen that happen.

The second thing with respect to the second part of the amendment, to have compulsory prOCfSS to obtain witnesses, there may be cases here where it has been difficult for an accused to find a witness, but those difficulties also lie with the Crown and I have never seen a court yet where the defence could identify a witness, where the defence does not have the right to subpoena those witnesses.

Now, I invite through you, Mr. Chairman, the law officers of the Crown to enlarge on my remarks, if they can. If I am incorrect, I want to know it.

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I would also, if the rule permit, ask Mr. Robinson to give us more substantive reasons based on experience as to why it is necessary to put this into a charter of rights.

However, having said that, and if Mr. Robinson has a chance to do that and if it is permitted by the Committee, I invite him to do that, but I think I want to end on this point, that we are again being drawn into a process to which I objected before the dinner adjournment, and that is we are literally being asked to codify all the rights which we have and I do not honestly believe that it is possible to do it under these circumstances.

If Mr. Robinson and his party, the New Democratic Party, are prepared to withdraw their position that all of these proceedings have to be completed by February 6 and are prepared as a consequence of that to express that to the Prime Minister and get a lengthy extension, I am prepared to sit here for months and discuss an entrenched Criminal Code. Short of that, I just do not think that we can do it now.

Mr. Chrétien: I do not want to entrench the code. To amend that we will have to go through the amending formula.

Mr. Fraser: Mr. Minister, I know perfectly well what you do not want and what you do want. I am just pointing out to anybody who may have been able to maintain any attention to this very legal debate that what we are being asked to do by Mr. Robinson is literally impossible to do with judgment and with wisdom, and unless somebody can tell me that in our existing criminal law the two concerns that Mr. Robinson has expressed by these two amendments are not already addressed, then I would have to, under the circumstances, reject them at this time.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Fraser.

Honourable Jake Epp.

Mr. Epp: Thank you very much, Mr. Chairman.

I would just like to ask the Minister if the NDP party’s amendment were to be accepted, what would happen, for example, with business records? Would they be admissible in fraud cases in court, if the amendment should carry?

Mr. Chrétien: To make it simple, it would not carry.

Mr. Epp: Mr. Minister, I am with you.

Mr. Chrétien: It would not carry.

Mr. Epp: Mr. Minister, I would still like an answer.

Mr. McGrath: How can you anticipate how we will vote?

Mr. Ewaschuk: I have heard certain defence counsel and Crown counsel characterize documents as silent witnesses that cannot lie; but in law they are not considered witnesses, so I do not think this would have any effect.

Basically, what we are saying is that the international covenants in some countries, affidavit evidence comes forward and you do not have the right of cross-examination and confrontation.

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We have had that in 1791 in the United States where there was some doubt and that is why it was put there.

We have had it here since time immemorial, as they have had it in England now for 150 years.

There are no problems. As Mr. Fraser has pointed out, the odd judge may cut down prolix cross-examination and there might be some problem getting permission evidence out of a foreign jurisdiction, and you cannot justify or show how the witness is crucial.

There are very exceptional circumstances. It is fine criminal procedure, and the basic rights are there.

As was pointed out earlier, Clause 11 (d) talks of a fair hearing. In Canadian courts you could not cut down on what constitutes a fair hearing. Clearly implicit in that is the right of confrontation and the right to have witnesses and such.

We say that the expression in Clause 11 (d), a fair hearing, encompasses rights of confrontation and the right to have witnesses there.

Mr. Epp: Mr. Chairman, I know now why the Minister was confident. I agree with him.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp.

Mr. Robinson to conclude on the proposed amendment.

Mr. Robinson: Mr. Chairman, to conclude, I find it rather interesting that the Minister would make that statement in the light of the heated statements made by members of the Committee on the other side that they were independent and listened to arguments, and that the Minister did not speak on their behalf.

The concerns which have been raised by Mr. Fraser and Mr. Epp I could understand. But I would like to point out to Mr. Fraser that there is a statute on our books called the War Measures Act apd that pursuant to the provisions of the War Measures Act, not only academically or theoretically, but in practice these very rights have been abrogated.

I would point to that rather unfortunate episode in Canadian history known to some as the Gouzenko Affair, when those rights were abrogated. I would point to the Conservative government in the United Kingdom just recently passing a statute abrogating the fundamental right to habeas corpus, and I suppose someone around this table might say, “Why does Robinson want to make sure that habeas corpus is in there? Nobody is ever going to take that away!”

Well, the Conservative government in the United Kingdom just took away t,hat right which was supposed to be fundamental.

So, Mr. Chairman, I would suggest that, again we are talking about rights which indeed Canadians may take for granted now; but in times of war or of insurrection we have seen that this government is all too ready to trample upon rights, and if they are not explicity recognized in the Charter they might very well be ignored.

The purpose of this, Mr. Chairman, is to recognize these as they have been recognized in many international documents as being fundamental.

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For this reason, Mr. Chairman, the amendment is being proposed.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

Amendment negatived.

The Joint Chairman (Mr. Joyal): At this stage I should ask whether Clause 11 as amended should carry.

Clause 11 as amended agreed to.

On Clause 12—Treatment or punishment.

The Joint Chairman (Mr. Joyal): I would like to ask honourable members to take the amendment relating to the next clause of the proposed amendment, Clause 12. There is an amendment identified as N-19, Clause 12, page 5. It is an amendment proposed by the New Democratic Party.

I would like to invite Mr. Robinson.

Mr. Robinson: Mr. Chairman, I will move the amendment. But I would like to note that the Minister is indicating, perhaps, we should be moving to Clause 15.

I am as anxious as the Minister is to move to Clause 15 to see whether the representations which have been made on behalf of the handicapped in this country will be heeded, as I certainly hope will be the case. We will be hearing about that very shortly.

I think I had better move the amendment first.

I would move that Clause 12 of the proposed constitution act, 1980 be amended by striking out line 32 on page 5 and substituting the following:

jected to any cruel, inhuman or degrading treatment or

Et en français, il est proposé

Que l’article 12 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la ligne 33, de ce qui suit:

Cruauté «tous traitements ou peines cruels, inhumains ou dégradants.»

Mr. Chairman, once again, the purpose of this amendment is to recognize the very real concern expressed by many witnesses appearing before this Committee with the formulation of Clause 12 as presently worded.

I would like to draw to the attention of members of this Committee, Mr. Chairman, that as it now stands the Clause is worded “cruel and unusual punishment”. What that means, according to the Supreme Court of Canada, is that any punishment is acceptable within the Canadian context, as long as it is not unusual. It does not matter how cruel it may be, or how inhuman or degrading, if it is not unusual, if it presently exists in Canadian jurisprudence, then it must be accepted and cannot be struck down.

The proposed amendment would bring the wording in the Charter into conformity with the wording in the International Covenant on Civil and Political Rights which deals specifically with a proscription of subjection to torture or to cruel, inhuman, or degreading treatment or punishment.

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In addition, Mr. Chairman, it is not something new. It was proposed by the federal government itself in February 1979 to the First Ministers Conference which was held at that time.

I would also draw to the attention of honourable members of the Committee, through you, Mr. Chairman, that there were a number of organizations, including—and these are just a few of them—the Vancouver Peoples Law School, the B.C. Federation of Labour, the Canadian Bar Association, the Elizabeth Fry Society and others, which pointed out the anomaly if this is to remain in its present form.

I will refer to only one of those briefs, the Canadian Bar Association, the B.C. branch and the Alberta Civil Liberties Association: they were dealing with Clause 12. They said that this clause could not be left in its present form if it is to have any real significance.

According to the majority of the supreme court in Regina versus Miller and Cockreill, the term “cruel and unusual” is to be read conjunctively; in other words, the punishment has to be both cruel and unusual in order to have it declared a contravention of that right.

As the Canadian Bar Association points out such a test is almost impossible to meet. They recommend that, in order to ensure that the provision has real significance, that it be reformulated along the lines of Article 7(1) of the Covenant to which I have referred previously.

They finally conclude by saying that whatever formulation is chosen, however, it should not contain the word “unusual”.

So, Mr. Chairman, to conclude I believe we should bring this Clause into line with the provisions of the International Covenant on Civil and Political Rights; that we should broaden the possible scope of this protection from cruel, inhuman or degrading treatment or punishment in order that some of the more odious forms of punishment and treatment which presently exist in Canada and which are by no mearis unusual might possibly be dealt with by the courts.

I need only point, for example, to the abuse of the lieutenant governors’ warrants. That is not unusual. Unfortunately and sadly, that is not unusual, and that could not be covered because of the fact that though it might be cruel, inhuman or degrading, it is not unusual.

Mr. Chairman, there is the treatment of prisoners held in solitary confinement. While there was a decision of the federal court at first instance that that constituted cruel and unusual treatment or punishment, it is very likely that, had that case been appealed—the government decided not to appeal it—it might very well have been overturned, beckuse solitary confinement under what many regard as cruel and unusual circumstances, cruel and degrading circumstances, is sadly not unusual in Canadian society.

So, as I say, Mr. Chairman, the purpose of this amendment is to ensure that merely because a particular form of punishment or treatment is usual or has been going on in Canadian

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society for some time, that it not be left out of the protection which is supposed to be accorded pursuant to Clause 12.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

The honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman.

I find this amendment by the NDP passing strange.

I would like to ask the Minister or officials of the Crown, this. I understand there was a case in Alabama, not many years ago, when Judge Johnson ruled on the number of times towels had to be changed, because if they were not that was cruel and unusual punishment. Are you familiar with that situation?

Mr. Ewaschuk: I am not sure of that particular case. But we are aware of what this has caused in relation to the jail situation in the United States and the accommodation, and how they had to be changed.

Mr. Epp: Do you care to give us some examples?

Mr. Ewaschuk: Well, I am given to understand that in the case of certain holding cells, it has been decided in some states that you cannot be held before conviction with others and that the judge would go down and take a look and say. “No, this is not good enough for the prisoners. They had better have good accommodation. You put them up in a hotel or something different.” It has obviously caused administrative problems.

But, that is not to say that we are not in fact following the very wording of the United States. lt gives some flexibility, because Article 8 says “nor cruel and unusual punishments inflicted”.

So basically, we are saying the same. This has in fact, been interpreted by the Supreme Court of Canada as well as in the McCann case where Mr. Justice Heald in the case of solitary confinement in the British Columbia setting, struck down that and said, “No, you cannot put this particular prisoner there”.

Our concern is that if we widened it up we know less of its implications and what it means.

Right now, we know, dealing with the question of cruel and unusual treatment or punishment that the Supreme Court of Canada in the Miller and Cockreill case said that capital punishment may be imposed, notwithstanding those words.

If, in fact, the clause is widened then it may take away from Parliament the right to make that decision and to transfer it to the courts. So we felt it would be better just to stay with the very same words which have been interpreted in the Bill of Rights.

Mr. Epp: Mr. Chairman, I have one other area to question. I thank Mr. Ewaschuk for that answer.

I would like to make an extension to what you have just said. If conjugal visits are not instituted in every prison, I suppose one can argue that they could also be brought into being if this clause were to pass.

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But I want to ask you, more importantly, this. We put forward an amendment at the time we came forward with our package of amendments, namely, the question of capital punishment and abortion—that they should not be dealt with in any way in the Charter of Rights, that it should be beyond the arms’ length of the courts, so to speak.

I would like to ask the Minister whether he has had anyone study Clause 12 and whether any determination has been made as to whether Clause 12 could be interpreted by the courts either as saying that capital punishment is not cruel or unusual, or in fact that it is.

Is the clause neutral on the question of capital punishment?

Mr. Chrétien: The advice I am receiving is that this clause is neutral—the power to decide on capital punishment will remain the prerogative of Parliament.

Mr. Epp: If it is neutral—and I accept your word as being the best knowledge the Crown now has—does that not leave open the possibility that the courts could decide on either side of the case as I have presented it?

Mr. Chrétien: The Supreme Court has already decided. They would have to reverse themselves.

Mr. Epp: Woult it not be possible for them to reverse themselves in view of the Charter now coming into effect?

Mr. Chrétien: No, we do not think that would cause them to change their minds and reverse themselves.

If we were to use the words proposed or change them, it could cause them to reverse themselves.

But if you use those words as exist in the Bill of Rights, the legal situation will remain the same.

Mr. Epp: On a philosophical basis, Mr. Minister, do you agree that the question of capital punishment should be left to parliamentarians?

Mr. Chrétien: Yes.

Mr. Epp: That being the case, have you had—and I am not trying to project ahead—any homework done on our proposed amendment, and have you any position on it at this time, or do you want to wait until it comes under the general headings?

Mr. Chrétien: We do not think your amendment is necessary.

Mr. Epp: We will present it at the appropriate time.

Mr. Chrétien: We will discuss the matter at the appropriate time, but you asked me a question.

Mr. Epp: I take it from you that you feel, one, that the matter is neutral and that the Supreme Court has judged on ‘it and declared that it is not unusual or cruel punishment, and that your position is that it should be Parliament judging on these questions, rather than the courts. We will make those arguments at the time which is appropriate to move our amendment.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp.

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The honourable John Fraser, followed by Mr. Hawkes.

Mr. Fraser: Thank you very much, Mr. Chairman. Have the words that Mr. Robinson uses, “cruel, inhuman or degrading treatment or punishment” been interpreted?

Have we any judicial interpretations of that?

Mr. Ewaschuk: No, not in Canada or in the United States, so far as I know. But, as I have stated, it says “nor cruel or unusual punishment”.

What we are saying is that we are doing it on the basis of what we know—familiar territory. Now, there was—and I believe Mr. Tassé has it in front of him—some discussion of a wider formulation of the so-called Diefenbaker Bill of Rights, and the wider formulation as proposed by Mr. Robinson was rejected at that time.

Mr. Fraser: That may not necessarily be a reason to reject it now. My concern is what does it mean? Where is it taking us?

Mr. Ewaschuk: Obviously, if we put new words in there, the court will say, “Well, Parliament has decided”, meaning you people, that some new meaning should be given to this clause. So they will look at it afresh, they will look at capital punishment—the question of capital punishment, if reinstated anew. They would not look at it in the light of Miller and Cockreill.

What we are saying is: Yes, there may be a new court sitting when it comes up the next time, but it is not probable, not likely that they will reverse themselves, given the same formulation.

But if you go to a new formulation, then it seems to be wide open for them, and it may be taken as an encouragement for them to strike it down.

Mr. Fraser: What is bothering me is it seems to me that the moment you take an accused away from his or her family, and deprive them of liberty and put them into an institution and commit them to rules and regulations where they have no options but to do what they are told, that it is quite easy to call that “cruel” and “degrading’, and even “inhuman”.

The difficulty you get into here is almost any punishment could be called that.

Mr. Ewaschuk: That is why it is coupled with cruel and unusual, so you look at what type of punishment was there. Obviously, jails have existed for quite a long time; capital punishment has existed ,for a long time; so they said that was not cruel and unusual. On the other hand, this particular form of solitary detention in this area was held by the one judge to be cruel and unusual and maybe in that context, it was; so we have accepted that.

Mr. Fraser: But under those circumstances, and what you are saying is that courts have—like Lord Denning—taken the words and not necessarily reinterpreted them, but given an interpretation to the words which have fitted the particular

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circumstances. It is your position that that is the way it should remain, at the moment?

Mr. Chrétien: I would like to read to you a section from Tarnopolsky, the Canadian Bill of Rights, his comment on page 238, where he said:

In the original draft, this clause refers to the imposition of torture, of cruel, inhuman or degrading treatment or punishment

Which was a direct copy of Article 4(2) of the Universal Declaration.

However, there was so much criticism of this phrase as being too vague, both by legal writers and by witnesses before and members of the Special Committee on the Bill of Rights, that it was decided to change the clause to its present wording. This brings it into line with the wording of the English and the American Bill of Rights.

I think, as my adviser told the Committee, we are on known grounds since now more than 10 years, there have been judgments of the court and we do not want to reopen it to new interpretation. We are satisfied with the status of law in that matter at this moment and we do not want to accept an amendment so that it could create a lot of uncertainty.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Fraser.

Mr. Hawkes.

Mr. Hawkes: Thank you, Mr. Chairman. I have a series of short questions, I think. You had the choice of “everyone” which is in the clause, but you could have put “any person”, which you did in Clause 11. My previous understanding is that the word “everyone” would include artificial corporations. Is that the intent of the government to have the clause apply to artificial persons as well as human persons.

Mr. Ewaschuk: I guess in relation to the punishment, you cannot incarcerate a corporation. On the other hand, Mr. Basford did go public and I do not know if the Minister will be going public, but we had Bill C-51 where in fact he wanted to impose certain work orders and such, and compensation orders, against corporations in certain cases. I do not know how they would discharge that, but somebody would have to do that and the corporation would have to pay for it. So it would be very unusual, you are quite right, where that would apply to anybody other than a natural person, but since the word “everyone” is there, it would apply to corporations as well.

Mr. Hawkes: That word in conjunction with, not so much the word “punishment” as “treatment”, when coupled with “unusual”, we have got those three words in there. I guess some of the thoughts that were going through my head, I wondered if you had considered and what comments you might have, but there has been, I think, a trend in North America to unusual punishments in terms of sentencing. There have been courts which were establishing, related to aboriginal people and their cultures, which are handing out sentences which would be termed unusual relative to past practices. That is being done with a view that those treatments better fit the

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culture and would have a positive benefit for society in the fact that, supposedly, they would lead to less recidivism.

I am just wondering if your sets of words might make some of the unusual but positive treatments and punishments, potentially positive treatments and punishments, subject to court challenge that might be successful.

Are we creating difficulty here, or positive change?

Mr. Ewaschuk: In fact, I think it has been viewed in a positive light that they are beneficial to the jurisdiction, their native JPs and such, who sentence their own, their unusual task, you are quite right, but they have not been characterized as cruel. In fact, they have been accepted by the aboriginal peoples, so in that sense I do not think we are worried about it.

Mr. Hawkes: Have you carefully considered those aspects of these words? I would just like the government’s assurance that they want it to apply to artificial people and that the combination of the word “unusual” and the word “treatment” as it appears in here, you have really considered it carefully and we are not asking for trouble on the positive side.

Mr. Ewaschuk: No, I do not see any problem, Mr. Hawkes, with the word “everyone” applying to a corporation, because if in fact some judge comes up with something cruel and unusual in relation to the corporation, why should it stand? What will probably happen is the Court of Appeal on a sentence will substitute a new sentence and the particular punishment will be struck down and it will be as simple as that.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes.

Mr. Robinson, to conclude on the proposed motion.

Mr. Robinson: Thank you, Mr. Chairman. Just to conclude on this particular proposed amendment, I would like to quote from the report which Canada submitted on behalf of both the federal government and the provincial governments on this question. This report states:

In Canada torture and the imposition of cruel, inhuman or degrading punishment or treatment or practices contrary to the philosophy of Canadian criminal law

Mr. Chairman, if that is the case, and if we recognize that governments, both provincial and federal, are bound by the provisions of the International Covenant, that those provisions were accepted by Conservative provincial governments, indeed by all provincial governments as well as by the federal government, then we accept that no Canadian should be subjected to cruel, inhuman or degrading treatment or punishment.

I point out again that in February of 1979, the federal government at that time presumably advised by the same legal advisers, put forward the following as a proposal:

the right to protection against cruel or inhuman treatment or punishment

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Mr. Chairman, I suggest that they were then recognizing that to be bound by the formulation of cruel and unusual was inappropriate and did not recognize that we did have certain obligations, we do have certain obligations internationally, that the narrow interpretation by the Supreme Court of Canada of those words was not in keeping with those obligations and it is in order to bring the Charter of Rights into compliance with the spirit of the Charter and to recognize the concerns expressed by many, many witnesses appearing before this Committee, that this amendment is being proposed.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

Amendment negatived.

Clause 12 as amended agreed to.

On Clause 13—Self-crimination.

The Joint Chairman (Mr. Joyal): I would like to invite the honourable members to take the next amendments, the amendment dealing with Clause 13. 1t is the amendment numbered C-19, Clause 13, page 5. lt is a government amendment.

I would like to invite Mr. Irwin to move the amendment.

Mr. Irwin: Thank you, Mr. Chairman. There are two things involved in this amendment, first a gender clarification and secondly, an extension to cover voluntary as well as compelled witnesses.

I move that Clause 13 of the proposed constitution act, 1980 be amended by striking out lines 34 to 39 on page 5 and substituting the following:

Self-crimination

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

M. Corbin: En français monsieur le president, je propose

Que l’article 13 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 34 à 39, page 5, de ce qui suit:

«13. Chacun a droit à ce qu’aucun témoignage incriminant qu’il donne ne soit utilisé pour l’incriminer dans d’autres procédures, sauf lors de poursuites pour parjure ou pour témoignages contradictoires.»

[Translation]

Thank you.

The Joint Chairman (Mr. Joyal): Senator Asselin.

Senator Asselin: Mr. Chairman, I would like the officials from the department to tell me if this clause will eliminate the necessity for a witness to ask for the protection of the court.

In many cases, it is asked of a witness who might face future prosecution that he ask the court for its protection on the condition, of course, that he neither commit a perjury or give contradictory evidence.

[Page 81]

I would like to know if the accused will no longer have to ask the protection of the court.

I would also like to know in the French text when it is said (temoignages contradictoires) if it might not be better to speak of (faux témoignages)?

[Text]

Mr. Ewaschuk: Yes, in relation. This is proposed, the Law Reform Commission has recommended this. Certain judges have written in to us recommending it. Mr. Justice Lamer, in a case, Quebec Court of Appeal, before he went to the Supreme Court of Canada, called Cote, has recommended it to change basically what is section 5 now of the Canada Evidence Act. So the witness need not make this application. He would invoke the statute but some judges would say you have to ask in relation to each and every question.

This basically cuts that having to ask, announcing it to the court, the unsettled question that needs to be, in relation to each and every question, the person automatically gets it.

If you are testifying, your testimony then is frozen. It cannot be used against you except in relation to perjury or contradictory evidence.

Contradictory evidence in Section 124, was brought in in 1955 amendments, and basically that is the situation where you have two proceedings. He may have testified at the preliminary enquiry for the Crown, then he is testifying at trial, he says “black” at the preliminary, “white” at the trial, so you do not have to prove at which one he is lying, but nonetheless, you have to show that he intended to mislead the court at one or the other of those proceedings. It is basically you tender the transcript of evidence from both proceedings. That proves the case.

The Joint Chairman (Mr. Joyal): Merci, Senateur Asselin.

I see that honourable members are ready for the vote.

The honourable John Fraser.

Mr. Fraser: Something has always worried me about this contradictory, because if there is a contradiction between the preliminary enquiry and the trial, but it falls less than what the prosecution thinks can establish perjury, I have always been worried about this because a witness of low intelligence, a witness under considerable emotional strain or emotional difficulties, and I am not talking about the ordinary emotional difficulty that goes with anybody who is a witness or an accused, could make a relatively innocent contradictory statement. And I suppose there is some case law on that, but it has always bothered me; and I am just wondering why we want to entrench that in the constitution. I have always felt that that was a matter which we might well look at again in terms of legislation or the rulings of the court.

Mr. Ewaschuk: In that regard, I think clearly we consider it to be a species of perjury, given in a judicial proceedings, but there are some safeguards within Section 124 itself. The Crown has to prove, they have to satisfy the court beyond a reasonable doubt that the accused in giving evidence in either of the proceedings, intended to mislead, that is in one of those proceedings; and then unlike in perjury, it has to be material

[Page 82]

evidence that where the inconsistency is, it is material to what must be proved, that is, Section 124(2), and then the further safeguard is there, and this is the reason why the charge is not laid very often, to require the consent of the Attorney General; so there are certain safeguards in that particular charge.

Mr. Fraser: But surely, the problem that we are facing here is akin to the problem that some of us have expressed when we start to add bits and pieces of the criminal law to the Charter of Rights.

What has happened here is that you are entrenching into the constitution a conviction for contradictory evidence and all the safeguards to what that means lies in the Criminal Code and is subject to amendment or to change.

Mr. Ewaschuk: As with the definition of perjury.

Mr. Fraser: That is true, but perjury is a pretty clear thing. We understand what that is, but contradictory evidence can be something far short of an intention to do wrong. My real concern here is what is the necessity of putting the words “or for the giving of contradictory evidence” into the Charter of Rights, because that is a punishment?

Surely the concept of rights is to establish rights, not punishment, and if you left those words off you would have a traditional thing we understand, perjury, certainly; but you would still be left with contradictory evidence in the Criminal Code with the safeguards that go with that concept of contradictory evidence; but here you are literally enshrining an offence and leaving it to the statute law to provide the protection.

Mr. Ewaschuk: I guess I am missing your point, Mr. Fraser, because all I am saying is that what you have done, basically this section freezes that evidence, you cannot use it. So what this says is a witness does not have to claim the protection, you simply get up and you give your testimony and the testimony is black on one occasion, white on another occasion, it has to be with intent to mislead, it must be in a material particular, then you can use it in that charge. lt does not necessarily convict you, you have to go and show that it is with intent to mislead, you have to show how it is a material particular, you have to prove it, but you can use it in that species of perjury, that is all it says.

It does not, then, just freeze this evidence, immunize that evidence.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Fraser.

Mr. Fraser: Just a minute, Mr. Chairman.

I am disturbed enough about this and have been for some years to caution the Committee about including the words “contradictory statements” in the Charter of Rights the way

[Page 83]

they are doing. It is already in the Criminal law and the safeguards are there. The safeguards do not lie here with respect to that particular part.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Fraser.

Amendment agreed to.

Clause 13 as amended agreed to.

The Joint Chairman (Mr. Joyal): I would invite honourable members to take the next amendment related to Clause 14.

On Clause 14—Interpreter

The Joint Chairman (Mr. Joyal): There are two amendments in relation to Clause 14, the first one is the amendment identified N-20, Clause 14, page 5. lt is an amendment moved by the New Democratic Party and I would like to invite Mr. Robinson.

Mr. Robinson: Mr. Chairman, we are on N-20, are we?

The Joint Chairman (Mr. Joyal): I have already called the amendment identified as N-20, Clause 14, page 5.

Mr. Robinson: Thank you, Mr. Chairman.

I would then move this amendment as follows, that Clause 14 of the proposed constitution act, 1980 be amended by striking out lines 40 to 44 on page 5 and substituting the following:

14. Every person has the right to the assistance of an interpreter in any proceedings before a court, tribunal, commission, board or other authority in which the person is involved or is a party or a witness if the person does not understand or speak the language in which the proceedings are conducted, or is subject to a hearing impairment.

Et en français, it est proposé

Que l’article 14 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 40 à 43, de ce qui suit:

«14. Les personnes qui ne comprennent pas ou ne parlent pas la langue dans laquelle se déroulent des procédures devant une instance judiciaire, quasi-judiciaire, administrative ou autre, ont droit à l’assistance d’un interprète; les personnes atteintes de déficiences auditives ont également ce droit dans les mêmes circonstances.»

The Joint Chairman (Mr. Joyal): Before I invite you to give an explanation, Mr. Robinson, the honourable James McGrath on a point of order.

Mr. McGrath: I am just wondering, Mr. Chairman, at first glance it would seem that our amendment, which is CP-7, Clause 14, page 5 should come first.

The Joint Chairman (Mr. Joyal): The only reason I have called the amendment proposed by the New Democratic Party, I refer to you the previous indication that the Chair would call in order the amendments, and so far as the New Democratic Party amendment deals with line 40 and your amendment deals with line 43, that is why I have to call according to the previous procedure, I have to call the New Democratic Party amendment first even though the Chair realizes that if the

[Page 84]

New Democratic Party amendment is accepted by this Committee, the amendment identified CP-7 is already included in the previous amendment, but if the amendment by the New Democratic Party is not accepted that does not prevent you from moving the amendment identified as CP-7.

Mr. Chrétien: Mr. Chairman, for a matter of clarification, you gave the background of the discussion on Clause 14. We cannot accept the amendment of Mr. Robinson and I will explain why, but we can accept the amendment of the Conservative Parvty and so perhpas we should deal with the two and I can give the explanation to Mr. Robinson so that it will not—the intention is all the same but the way of drafting one is better than the drafting of the other, and the Robinson amendment, if I can use that term, the 150th amendment, it is too vague and could create all sorts of problems.

I am informed, for example …

Mr. Robinson: Mr. Chairman, on a point of order. Mr. Chairman, with great respect to the Minister, if I might have an opportunity to at least explain the amendment before it is shot down by the Minister. That is, I believe the normal procedure.

The Joint Chairman (Mr. Joyal): I will invite Mr. Robinson to present his amendment in the usual way.

Mr. Robinson: Thank you, Mr. Chairman.

I know that the Minister still has an open mind on the subject and will be listening with great interest and will not be subject to any impairment involving hearing. it is one thing not to listen, Mr. Chairman, it is another thing to be subjected to a hearing impairment.

Mr. Chairman, the purpose of this amendment is to expand the protection presently accorded in Clause 14 to an interpreter, and it is not something which is unusual or vague or difficult to apply, as the Minister suggested, because with respect, Mr. Minister, through you, Mr. Chairman, the wording is taken precisely from the terms of Bill C-60.

Now, once again, Mr. Minister, I would have assumed that the same people who advised you on Bill C-60 would be advising you today and I am sure that they would not have wished to advise you at that time to accept something which was vague or impossible to interpret.

Mr. Chairman, it is not a question of vagueness, it is a question of scope. In Clause 14, as the amendment would read, we would be going beyond proceedings in which a person was a party or witness, but we would be going to proceedings in which a person was involved, to use the words of the proposed amendment, and we would also be expanding the words to deal with other authorities.

As I say, this is the proposal in Bill C-60, it was accepted by the MacGuigan-Lamontagne Committee, it was not considered by the government two years ago to be vague or difficult to interpret. I suggest that the amendment was reasonable and that it should be accepted. I would hope that it would be accepted by the government.

I would also say that I am pleased to hear that the government is prepared to accept the amendment with respect to

[Page 85]

deafness which is being proposed both by the Conservative Party and the New Democratic Party but I would hope that the government would recognize the desirability of expanding this in terms which it was presented in Bill C-60.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

Mr. Chrétien: I will ask my advisor to give the explanation but the fact that it was accepted in Bill C·60, the deputy minister is not the same, perhaps he is a judge now, so we have a different troop and to explain why we feel after reflection what is better.

Mr. Ewaschuk: Obviously in relation to the proceedings the administration of justice is conducted by a provincial authorities. The expression in which the person is involved means more than the party or the witness so you can have all kinds of interested parties come to court and this would in fact give them a constitutional right to have interpreters so they could understand the proceedings.

Now, oftentimes that is so. If it is a language problem, the interpreter is there, and there is translation that goes on and there is certain accommodation, but if you were to do that for everybody who came in, who is somehow involved, they may be in fact a relative or so who does not understand the language but they are not a witness, they are not the accused and such, it could have certain important ramifications for the adminis· tration of justice and I think that the position we take is that, yes, we are not opposed to that but we would let the provincial try to work that out rather than saying that they have to in fact do it.

We say the minimal, yes, it should be for the witness, it should be for the party, extended to the deaf, but that is as far as we are willing to go at this particular time.

The Joint Chairman (Mr. Joyal): Thank you very much.

Mr. Robinson to conclude.

Mr. Robinson: Just a question, Mr. Chairman, if I may, to the officials or to the Minister.

Is it my understanding that Clause 14 as the government is proposing now would not cover the right to an interpreter of a person who is, let us say, arrested or detained; if they are being questioned, that they would not be protected by this right to an interpreter, that is my reading at least of Clause 14. Whereas, under the proposed amendment, because of the insertion of the words “or other authority” in which the person is involved, they would be protected in those circumstances?

Mr. Ewaschuk: Well, I kind of doubt that. When you are talking about procedings before another authority, I doubt that you would get a court characterizing that as being police interrogating somebody.

You must keep in mind again, and we have gone over this before, that the Crown has to prove a statement as voluntary, so if you have two English policemen who were in fact interrogating somebody who did not understand English, it is very unlikely that the judge is going to find that that statement is voluntary.

[Page 86]

So rather than say that the police have to have to bring in, anytime there is a question on whether or not somebody was being interrogated can understand English, they will do that as a matter of course if they want to get that statement in, but it would not be an absolute right in relation to proceedings because I just do not see that as being characterized as proceedings.

The Joint Chairman (Mr. Joyal): Mr. Robinson to conclude.

Mr. Robinson: Yes, Mr. Chairman.

Just to conclude, I would remind the Minister through you, Mr. Chairman, of the recent case in Toronto in which this very point was canvassed and raised in connection with an East Indian who was questioned under circumstances in which it was alleged that he did not understand the language in which he was being questioned.

I would also suggest that the words “other authority” have been interpreted by our courts to include circumstances in which a person is being questioned by the police, that the person is an authority figure, when we are dealing, for example, with confessions, and that is the way Canadian jurisprudence has interpreted those words.

I think, Mr. Chairman, with great respect to the present deputy minister, that the advice which was given in 1978 was very sound advice and I would suggest that this Committee should accept that advice.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

Amendment negatived.

The Joint Chairman (Mr. Joyal): I would like then to invite the motion identified as CP-7, Clause 14, page 5, the motion proposed by the Conservative Party to be moved and invite the Honourable James McGrath to so do.

Mr. McGrath: Mr. Chairman, before I read the amendment there is a slight change. The amendment should read “ed or who is deaf” to make it conform technically with the page.

Mr. Chairman, the amendment is as follows, I move that Clause 14 of the proposed constitution act, 1980, be amended by striking out line 43 on page 5 and substituting the following:

ed or who is deaf has the right to the assistance of an”

I will ask my colleague, Senator Tremblay, if he will read it en français, s’il vous plait.

[Translation]

Senator Tremblay: Just to please my colleague who could very well read it himself.

[Text]

Il est proposé

Que le projet de Loi constitutionnelle de 1981 …

j’imagine

[Page 87]

soit modifié par substitution …

Il faut continuer à dire 1980, n’est-ce pas? Merci, monsieur le président, de cette indication.

… soit modifié par substitution, à l’article 14, de ce qui suit:

«14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu’ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu’ils sont atteints de surdité, ont droit à l’assistance d’un interprète.»

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.

[Text]

Mr. McGrath, to propose the motion in the usual way?

Mr. McGrath: Thank you very much, Mr. Chairman.

I must be getting overtired or perhaps I must be developing a hearing impediment because I thought I hear the Minister say he was going to accept our amendment.

Mr. Chrétien: Yes. Yes.

Mr. McGrath: Well, Mr. Chairman, now that that fact has been so dramatically verified I expect any minute to ask the Minister to give consent to have the amendment withdrawn to be moved on a subsequent amendment. It would be more in keeping with the experience we have had here.

However, Mr. Chairman, this is a serious amendment and I am very, very encouraged by the fact that the government has seen fit to accept it because there are a number of people in this country who have a serious hearing handicap. Indeed, I stand to be corrected on this, but there are over 200,000 Canadians who are deaf or have a hearing disability to the point where they are clinically or legally deaf, and it is a serious problem because their handicap is not apparent and it becomes compounded when they are party to legal proceedings. That is why this amendment is so important.

It is not without interest to note that we are moving in the direction of recognizing the rights of these people, for example in broadcasting they have mechanical devices now in the public broadcasting system in the United States for the hard of hearing or the deaf. I understand that we are moving in that direction in Canada as well.

Mr. Chairman, I am gratified that the government has accepted our amendment and, as a matter of fact, I am speechless.

Mr. Crombie: Two good events on one motion. Two!

The Joint Chairman (Mr. Joyal): I will not speak on behalf of the government, of course, honourable James McGrath, but you might wonder why the government has changed its mind about that and I told you last week that some see the light because they found their hearts and some change their mind because they hear the voices, and that is probably what happened in the present case.

An hon. Member: I am sure they heard footsteps.

The Joint Chairman (Mr. Joyal): I see that the honourable members are ready for the vote.

Amendment agreed to.

[Page 88]

Clause 14 as amended agreed to.

On Clause 15—Equality before the law and equal protection of the law.

The Joint Chairman (Mr. Joyal): I will invite, then, honourable members to take the amendments in relation to Clause 15. There are a certain number of amendments dealing with Clause 15, especially taking into account that very clause of the proposed motion has two subclauses, Clause 15(1) and Clause 15(2), and in order to deal with the two subclauses in order I would like to invite honourable members to take the amendment identified G-20, Clause 15(1) page 6.

There are two subamendments, to that amendment. The first subamendment that the Chair will invite honourable members to take is the one identified N-21, Clause 15(1), page 6, revised, that is the one with the word “revised” on it, and the next subamendment in relation to the same main amendment is the one identified as CP—8(1), Clause 15, page 6.

So it means that the first subamendment we will be dealing with is the last one that I have mentioned, CP-8(1), Clause 15, page 6, but before we deal with that second subamendment I would like to invite Mr. Irwin to move, or Monsieur Corbin, to move the one identified G-20, subclause 15(1), Page 6.

Monsieur Corbin.

M. Corbin: Merci, monsieur le president.

Or, je propose

Que le paragraphe 15(1) du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la rubrique qui précède la ligne 1, et aux lignes 1 à 5, page 6, de ce qui suit:

«Droits à l’égalité

15. (1) La Loi ne fait acception de person ne et s’applique également à tous et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe ou l’âge.»

Mr. Chairman, I would like to move that the heading preceding Clause 15 and Clause 15(1) of the proposed constitution act, 1980, be amended by striking out the heading immediately preceding line 1 and lines 1 to 5 on page 6 and substituting the following:

“Equality Rights

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex or age.”

[Translation]

Thank you, Mr. Chairman.

Le coprésident (M. Joyal): Thank you, Mr. Corbin.

[Text]

I would like to invite Mr. Robinson on behalf of the New Democratic Party to introduce the subamendment revised N-21, Clause 15(1), page 6.

Mr. Robinson: Thank you, Mr. Chairman.

[Page 89]

I am very pleased to move the subamendment as follows …

Mr. Epp: Just a point of order, Mr. Chairman.

I must have misunderstood you. I take it now that you are going to ask for the New Democratic subamendment first and then call for our subamendment to the subamendment?

The Joint Chairman (Mr. Joyal): Yes. That is what I have already stated, Mr. Epp.

Mr. Epp: I did not understand it that way. I thought you asked for our subamendment to the amendment.

The Joint Chairman (Mr. Joyal): No, that is not the way.

Go on, Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

The amendment is as follows, first of all in English, this is to the proposal of the government, I move that the proposed amendment to Clause 15(1) of the proposed constitution act 1980, be amended by (a) striking out everything immediately following the words “Every individual is equal» and substituting the following:

in, before and under the law and has the right to equal protection and equal benefit of the law, and to access to employment, accommodation and public services, without unreasonable distinction on grounds including sex, race, national or ethnic origin, colour, religion or age.

And then, Mr. Chairman, there are six additional subsections. The first is: (b) adding to Clause 15(1) the following: “physical or mental disability,”; (c) adding to Clause 15(1) the following: “marital status,”; (d) adding to Clause 15(1) the following: “sexual orientation,”; (e) adding to Clause 15(1) the following: “political belief,”; (f) adding to Clause 15(1) the following: “lack of means”; and (g) moving the word “or” so that it appears immediately after the penultimate proscribed ground of discrimination.

Mr. Chairman, those are our proposed amendments to Clause 15(1) to recognize some very fundamental and important grounds of discrimination which are not recognized in the government’s proposal.

In French, Mr. Chairman, if you would like me to read this in French.

Il est proposé

Que le projet de modification du paragraphe 15 (1) du projet de Loi constitutionnelle de 1980 soit modifié par:

a) substitution, à ce qui suit le membre de phrase «La loi ne fait exception de personne», de ce qui suit:

«Tous ont droit à la même protection et au même bénéfice de la loi, ainsi qu’à l’accès aux emplois, au logement et aux services publics, indépendamment de

[Page 90]

toute distinction abusive fondee notamment sur le sexe, la race, l’origine nationale ou ethnique, la couleur, la religion ou l’âge.»

b) adjonction, au paragraphe 15 (1), de ce qui suit: «les déficiences physiques ou mentales,»

c) adjonction, au paragraphe 15 (1), de ce qui suit: «la situation familiale,»

d) adjonction, au paragraphe 15 (1), de ce qui suit: «l’inclination sexuelle,»

e) adjonction, au paragraphe 15 (1), de ce qui suit: «les croyances politiques,»

f) adjonction, au paragraphe 15 (1), de ce qui suit: «l’insuffisance de moyens.»

g) insertion de la conjonction «or» avant la dernière distinction discriminatoire énoncée au paragraphe 15 (1) tel que modifié.

Monsieur le president, je crois que cela doit etre «ou» et non’ pas «or».

Mr. Chairman, again these are proposed additions and changes to Clause 15(1) and I am very pleased to note that the Conservative Party will also be proposing the addition of physical and mental disability, supporting our amendment on that particular subclause.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

I would like to invite the honourable James McCrath to move the amendment on behalf of the Conservative Party.

Mr. McGrath: Mr. Chairman, my colleague, Mr. Crombie will do so.

The Joint Chairman (Mr. Joyal): The honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

Mr. Chairman, dealing with Clause 15 and our amendment to it, which is numbered CP-8(1) on the sheet, I wish to move that the proposed amendment to Clause 15 of the proposed constitution act, 1980, be amended by striking out the words “or age” in Clause 15(1) thereof and substituting therefor the following words:

age or mental or physical disability.

En français, il est proposé

Que le projet de modification de I’article 15 du porjet de loi constitution ne! de 1980 soit modi fie par la substitution, a «ou l’âge», au paragraphe (1), de «l’âge ou les déficiences mentales ou physiques.»

Mr. Chairman, speaking to the motion, my understanding is that the government is willing to accept our amendment.

Now, I am not sure we can continue to take this prosperity any longer!

However, on behalf of those groups, organizations and individuals who find themselves physically and mentally dis-

[Page 91]

abled in this country, I would like, on their behalf, since I am the spokesman on their behalf at this point, to offer my thanks to the government for their acceptance of the amendment.

Thank you very much.

The Joint Chairman (Mr. Joyal): Thank you, the honourable David Crombie.

Mr. Chrétien: But who told you that I have accepted the amendment. I have not yet spoken. I think it was a good put on.

Mr. Crombie: I have already spoken to Bob Kaplan and he has said it is okay!

Mr. Chrétien: If I can have five minutes I will call the Prime Minister.

It is with great pleasure that I accept the amendment on behalf of the Government.

I do not think we should debate it. There was a great deal of debate. I was very anxious that we should proceed tonight. They were preparing to have a big group tomorrow.

You can have lots of beer on my health.

Thank you for your good representation.

The Joint Chairman (Mr. Joyal): So the amendment is carried, I should say wholeheartedly with unanimous consent.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to come back to the first subamendment and to invite Mr. Robinson to introduce the amendment in the usual way.

Mr. Robinson: Thank you, Mr. Chairman.

I certainly would like to express my sincere gratitude to the Minister for listening to the concerns of both the physically and mentally disabled.

I know the Minister will recognize that this is in many ways unprecedented and a historic occasion, because it is a right which has not yet been recognized in many international covenants and charters; I think the Minister and the government deserves full credit for accepting the recommendations of the subcommittee and of many other Canadians.

Certainly, I want to join with my colleague and friend, Mr. Crombie, in thanking you, Mr. Minister, for accepting this very important amendment.

Mr. Chrétien: I forgot to mention, with your permission, Mr. Chairman, that I think we should thank all the members of the special committee, presided over by Mr. David Smith, who has worked very hard indeed.

I would like to thank Mr. Smith and all members of the Committee who have worked all summer very hard on the problem.

We are entering a new field, and quite properly breaking good ground. I think we should be careful that we should not take it to the extent of opening the door to a list that would be meaningless. It is on the list as an amendment which will be accepted.

[Page 92]

Mr. Robinson: Once again, Mr. Chairman, I know that the Minister will listen carefully to the representations made on the amendment which we will be proposing, just as he has listened with care to the representations of the groups representing the physically and mentally disabled.

Mr. Chairman, I also cannot resist pointing out that this fundamental right to protection from discrimination on grounds of physical and mental disability is surely one which should be accorded to all Canadians right across Canada, in every province in Canada, and that no provincial government should be permitted to opt out of providing basic and fundamental rights and freedoms to the handicapped.

Mr. Chairman, perhaps my Conservative colleagues would pay particular attention to that point, that the effect of their proposed amending formula, would grant rights to the handicapped in some provinces and not to the handicapped in other provinces which chose to opt out.

The Joint Chairman (Mr. Joyal): Mr. Robinson, I regret to interrupt, but as I have already expressed on other occasions, I think you should address yourself to the content of the proposed amendment.

The amending formula will come later on in our discussions; but at this point we are dealing on a clause which does not have any reference to the amending formula as such.

I would invite you to restrict your remarks to the contents of the proposed amendment.

Mr. Robinson: Thank you, Mr. Chairman.

I wonder if I could seek some guidance from the Chair, in that this is a rather substantive amendment and there are a number of major areas which will be touched upon in the course of the amendment and in that on each clause I will be proposing that they be voted upon separately, I wonder whether we might call it 10:30 p.m. and I might explain to you the purpose of the proposed amendment immediately upon starting tomorrow morning, rather than giving an explanation, then adjourning and having to explain again tomorrow morning?

The Joint Chairman (Mr. Joyal): The Chair is in the hands of honourable members of this Committee, and I would invite the honourable Jake Epp on the very suggestion as expressed by Mr. Robinson.

Mr. Epp: Mr. Chairman, I have no comment.

But I want to comment on his amendment.

The Joint Chairman (Mr. Joyal): I am sorry.

Mr. Corbin, I repeat that Mr. Robinson has invited honourable members to adjourn at this point instead of cutting him short.

That is agreed. It is 10:30 p.m. The meeting is adjourned until 9:30 tomorrow morning.

[Translation]

The meeting is ajourned.

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