Document Information

Date: 1980-08-15
By: Cabinet
Citation: Cabinet Papers, Charter of Rights: Status Report (15 August 1980).
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Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

CONFIDENTIAL

August 15, 1980

9          CHARTER OF RIGHTS

1. STATUS REPORT

At the conclusion of the July CCMC meetings, no decisions had been taken by Ministers on an entrenched Charter. There had been general statements of positions by Ministers at the opening plenary sessions in Montreal followed by closed ministerial discussions in Toronto. This was followed by meetings of officials in Vancouver where the federal discussion draft of July 4, 1980 was examined in detail as one part of the mandate referred to the committee of officials for examination and report. On the basis of these various discussions, the provincial positions on each category of rights may be summarized as follows (see following back­ ground notes for a more detailed outline of provincial positions) :

1. Entrenchment of Charter of Rights: Although several provinces have reservations about the principle of entrenching rights in the constitution, only Manitoba and Alberta appear at this point to be firmly opposed to the concept. Alberta’s position may be a bargaining stance; Manitoba’s is not.
2. Fundamental Freedoms and Democratic Rights: Apart rom Manitoba and Alberta, there appears to be general acceptance for entrenching these categories.
3. Legal Rights: Again, apart from Manitoba and Alberta, there seemed to be a willingness to see some legal rights entrenched. However, Ontario, Quebec, Saskatchewan, Nova Scotia and PEI remain opposed to extending these rights beyond the criminal and penal sphere.
4. Non-discrimination Rights: There is little support for including this category in the Charter: only Ontario, New Brunswick and Newfoundland remain committed to it.
5. Mobility Rights: Again, this category draws little support, and most provinces are particularly opposed to the rights pertaining to acquisition of property and seeking employment. Even on the right to move and take up residence in another province support will likely be found only from B.C., Newfoundland, PEI, New Brunswick and Ontario.
6. Property Rights: This category drew support from only B.C. although Ontario, PEI, and New Brunswick were sympathetic to the principle.
7. Federal Language Rights: There was no strong opposition to this category (Quebec abstaining and Manitoba reserving throughout the discussion on all language rights), although Nova Scotia and PEI opposed declaring French and English to be the official languages of Canada and Alberta and Saskatchewan reserved their positions.

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8. Provincial Language Rights: There is little agreement in this area. Ontario remains strongly opposed to entrenchment of both languages for the courts and statutes (as do Quebec and Manitoba). New Brunswick is strongly in favor. The six other provinces appear to have no firm views but obviously favor the Pepin-Robarts approach of leaving the matter to provincial laws.
9. Minority Language Education Rights: Putting aside Quebec and Manitoba which oppose including this category, there are only three provinces (Ontario, Newfoundland and New Brunswick) that are prepared to commit themselves to entrenching the “Montreal Agreement”, but even they are doubtful about making it a binding legal obligation. B.C. and Saskatchewan profess to be opposed to including even the principle while the others reserved their position on this. It is evident that virtually all provinces are taking up the perceived Pepin-Robarts position of leaving this matter to provincial determination.

Proposed Federal Strategy

From the foregoing summary it is evident that the federal government will have to be prepared to. make a number of concessions in the upcoming discussions in order to seek a broader consensus on an entrenched Charter.

To this end it is proposed to lay before the committee of officials on Tuesday, August 26 a revised discussion draft Charter that would contain the following elements:

1. An introductory clause stating that the rights and freedoms are subject to the reasonable limits generally accepted in a free and democratic society. This would enable the removal of the various limitation clauses that were provided in the earlier draft, thus arguably giving the courts a broader power to recognize limits imposed on rights than if the precise grounds for justifying limits were spelled out. This may appeal to those provinces that were having problems with the meaning of the specific limitation clauses.
2. Fundamental freedoms and democratic rights essentially as in the earlier draft but with same minor modifications to meet provincial concerns.
3. Legal rights revised substantially to make their meaning and application clearer, especially with regard to criminal and penal matters. In this regard, the principal provision relating to rights in civil and administrative proceedings would be dropped (the right to a fair hearing for the determination of one’s rights and obligations).

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Also, the rule respecting self-crimination has been clarified and the courts will be prevented from adopting the American rule respecting the exclusion of all illegally obtained evidence (by virtue of revised remedies sections (26 & 27)). These changes are all designed to meet provincial concerns.

4. Mobility rights maintained in the same form as before, but subject to possible reconsideration in light of the section 121 draft on “Powers over the Economy”. (It may be desirable to consider transferring the rights to acquire property and to seek employment from the mobility rights to the provisions for an economic union.)
5. Non-discrimination rights revised to specify the grounds of forbidden discrimination. This was an approach advocated by some provinces. However, it may prove equally unworkable and consideration may have to be given to eventually eliminating this category.
6. Property rights would be eliminated as a category in response to near unanimous provincial opposition to it.
7. Official languages of Canada would be tied in. to the principles of section 2 of the Official Languages Act (equality of status of the two languages in federal institutions) to assure provinces that official languages were not being imposed on them.
8. Languages at federal level would remain unchanged since they engendered no real provincial opposition.
9. Languages at the provincial level would be as before with three important changes: (a) Ontario and Manitoba would be offered a five year delay to print and publish statutes in both languages and a ten year delay to implement the use of both languages in the courts; (b) the obligation to ensure that a witness in criminal and penal proceedings be heard in the official language of his choice would be dropped; and (c) it would be made clear that provincial obligations to provide services to the public in both languages would be matters solely for determination by the legislatures.
10. Minority language education rights would be modified to employ the test of “mother tongue” of the parents thus making it clearer for provinces in determining who would qualify for minority language instruction. However, the determination by provinces of the criterion and the question of “where numbers warrant” would remain subject to judicial review — a point that the provinces will likely continue to oppose. In addition, it is possible that Quebec may be offered a ten year delay period to give full effect to these rights. [Note: all of the foregoing is dependent on approval being received from the Prime Minister based on the memorandum sent to him on August 14.]

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In addition the Charter would continue to include provisions or he recognition of unenumerated rights that may exist including those that may pertain to native peoples, and for a more limited scope of remedies that the courts may grant. This latter is designed to meet a concern of many provinces that the remedial powers were too broad.

As noted above, it is assumed that this revised Charter draft will be discussed by the committee of officials prior to further discussions by Ministers. However, if the subject is raised in ministerial discussions before officials have an opportunity to consider the draft, it is recommended that the Minister make the following points:

• that the revised draft h s to be prepared to take into account a number of concerns raised earlier by provincial officials;
• that the general limitation clause in section 1 (which replaces the specific limitation clauses) is designed in part to avoid confining the courts to any specific grounds for permitting limits to be placed on rights, thus giving wider latitude to possible grounds for limits being recognized by the courts;
• that legal rights have been more clearly defined and limited in the civil and administrative areas, including clarification of the self- incrimination rule and non-admissibility of evidence;
• that non-discrimination rights have been narrowed and property rights dropped; and
• that concessions are proposed respecting the scope and implementation of provincial language rights.
• that, in light of the foregoing, the committee of officials be requested to review the revised draft and report back to Ministers.

In addition to all the. foregoing, it is proposed that the committee of officials pursue further discussions on including in the Charter an override clause which would permit an ordinary law to expressly override specific Charter rights. While the federal position will initially be to convince the provincial officials that such a clause is undesirable and unnecessary, if there is considerable provincial sentiment for including a provision, the federal officials would propose a clause which might permit an override under one or more of the following conditions:

• that enactment of an override law would require some special majority vote, eg. 60%
• that any law with an override clause would have a limited life, eg. five or ten years, unless in the meantime an amendment to the Charter had been made remedying the problem perceived by the law.

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In summary, discussions by officials would first focus on the revised draft Charter seeking as much consensus as possible and underlining again the federal government’s commitment to an effective entrenched Charter for both levels of government. Next, there would be discussion on the possible inclusion of a satisfactory override clause. Finally, the committee would turn to the two remaining aspects of its original mandate: a Charter applicable initially only at the federal level and a possible strengthening of the existing Canadian Bill of Right applicable only to federal laws. Since neither of these has any real merit, little time would be devoted to their consideration.

[Included in the background notes as an elaboration on the foregoing Status Report are a revised Charter draft and copies of memoranda to the Prime Minister dated August 5 & 13 dealing with the revised Charter and the question of a provision on minority language education rights. The Charter draft is subject to further drafting modifications and to substantive changes in minority language education rights depending on the response from the Prime Minister on the latter point.]