Document Information

Date: 1981-11
By: Unknown
Citation: Continuing Committee of Ministers on the Constitution, Charter of Rights: Report to Ministers by Sub-Committee of Officials, Doc 830-84/031 (29 August 1980).
Other formats: Click here to view the original document (PDF).

Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

DOCUMENT: 830-84/031

CONFIDENTIAL

August 29, 1980

CHARTER OF RIGHTS

Report to Ministers by Sub-Committee of Officials

1. Since its report of July 24, 1980 to Ministers, the sub-committee of officials has met this week to consider:

• a revised federal discussion draft Charter dated August 22, 1980;
• a provincial proposal dated August 28, 1980 for modifications and deletions in the federal discussion draft;
• the practicability of including an override (non­ obstante) clause in an entrenched Charter; and
• the possibility of strengthening the Canadian Bill of Rights as an alternative to an entrenched Charter.

2. As before discussions on these items proceeded without prejudice to any province’s position on the principle of entrenchment itself, it being felt that this was a matter for ministerial consideration in light of this report.

Federal Discussion Draft of August 22, 1980

3. This draft was prepared in light of concerns of provincial officials noted in the earlier report and sought to cover in particular the following points:

• to remove the specific grounds for limiting rights by specifying in section 1 that all rights are subject to generally accepted reasonable limits,
• to clarify and limit the scope of legal rights,
• to ensure that courts could not exclude improperly obtained evidence on that ground alone,
• to contain the scope of non-discrimination rights,
• to eliminate the category of property rights,
• to allow for some restrictions on mobility rights⁽¹⁾,
• to eliminate the right of witnesses in criminal and penal proceedings to give evidence in English or French as they choose.

_________________

⁽¹⁾A revised draft on mobility rights was tabled by federal officials to correspond with amendments being proposed to Section 121 of the BNA Act. A copy is annexed to the federal draft Charter of August 22, 1980.

[Page 2]

In addition, officials of Ontario and Manitoba were invited to consider a delay provision for the implementation of the language rights provisions respecting statutes (five years) and courts (ten years).

4. Following examination of the revised draft, officials of most provinces remained concerned about both the scope of rights covered by the draft and by the language of many of its provisions. To respond to these concerns provincial officials met and prepared a joint provincial proposal for a Charter in the event one was to be entrenched. This was subsequently reviewed with federal officials.

Provincial Proposal for a Charter, August 28, 1980

5. The changes which this proposal would make in the federal draft are set out in a tabular comparison of Charter of Rights drafts annexed hereto and carry the unanimous support of provincial officials except as otherwise indicated in the table.
6. The principal changes may be summarized as follows:

• several of the legal rights would be deleted,
• other of the remaining legal rights would be qualified by a “lawful grounds and prescribed procedures” test rather than a “reasonable or non-arbitrary” test,
• non-discrimination rights would be deleted,
• mobility rights, if included in the Constitution, would not be in the Charter,
• undeclared rights would be deleted,
• the remedies section for breach of rights would be deleted, and
• the paramountcy of Charter rights provision would be qualified to ensure that admissibility of evidence rules would not be superseded.

7. Provincial officials did not make any joint proposal on official languages and language rights, feeling that further discussion by Ministers of the federal draft provisions was required on this matter.
8. Federal officials indicated in response to the joint provincial proposals that a number of changes advanced would be given close consideration in a re-examination of the federal draft. With respect to some of the others, serious doubts were expressed about the acceptability of proposed changes and deletions.

Legislative Override Clause

9. Some consideration was given to the possible inclusion in an entrenched Charter of an override clause whereby a legislative body could expressly provide that a law would operate notwithstanding a Charter right. While some do1;1h was voiced about the desirability of including such a provision, there was general agreement that further consideration should be given this matter.

[Page 3]

10. One mechanism that was discussed, in the event it is decided that an override clause is necessary (and this could depend on the ultimate scope and wording of an entrenched Charter), is a requirement that any law enacted under an override provision be adopted by a 60% majority of the legislative body and that any such law would expire after a specified time period, e.g., five years unless repealed earlier. There was no discussion of the particular categories of rights to which any override clause might apply.

Strengthening Canadian Bill of Rights

11. As an alternative to entrenching a Charter, some consideration was given to the possibility of strengthening the Canadian Bill of Rights by making it a clear statement of effective rights rather than an interpretive statute. In discussion of this matter, it was noted by federal officials that this would not be seen as a viable approach to protecting basic rights since it

• would apply only at the federal level,
• would not cover the range of rights contemplated in the federal draft, particularly language rights, and
• would not guarantee common basic rights to persons throughout Canada.

Issues for Ministers

12. In light of the foregoing summary, the following issues arise for consideration and determination by Ministers:

• Should there be an entrenched Charter of Rights?
• If so, which categories of rights should be included from among the following categories:
• fundamental freedoms
• democratic rights
• legal rights (including the scope of such rights)
• non-discrimination rights
• mobility rights
• language rights at the federal level
• language rights at the provincial level
• minority language education rights?
• Should inclusion of an override clause along the lines described above be contemplated?

[Page 4]

13. Annexed hereto are the following documents:

• Federal Discussion Draft of Charter, August 22, 1980
• Provincial Proposal for a Charter, August 28, 1980
• Provincial Tabular Comparison of Charter Drafts.

Roger Tasse

Chairman