Document Information

Date: 1980-08-05
By: Deputy Minister of Justice, Canada
Citation: Memo from Deputy Minister of Justice to Prime Minister, Charter of Rights incl. Discussion Draft, The Canadian Charter of Rights and Freedoms (5 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.
Note 2: There is a second version of the memorandum with Prime Minister Trudeau’s notes (HERE).

[…]

10. General

A number of sections of the new draft have not been mentioned. This is because they have not been significantly changed from the July 4 draft and because they do not raise issues on which we feel your instructions are required at this time.

There remains, however, one further important issue which is not raised by the draft, but which will likely be discussed further at the federal-provincial meetings later this month. One of the matters referred by Ministers to the committee of officials was the possibility of including a “notwithstanding” clause in the Charter thereby permitting a legislative body to enact a law overriding one or more rights by an express provision in the enactment to that effect. This approach, you may recall, was considered in some detail during the 1978-79 negotiations, but most provinces finally had considerable doubts about its political acceptability. It is, however, an approach that could alleviate to some extent provincial concerns about the rigidity of the Charter in the face of “bad” court decisions. On the other hand, it is a provision that could seriously undermine the efficacy of the Charter if it were invoked too frequently.

On the basis of preliminary discussions with provincial officials,’ it would appear that a “notwithstanding” clause has some appeal to the provinces. We, however, continue to have considerable reservations about its desirability and, indeed, its necessity, particularly if the legal rights are more clearly defined. Thus we propose at this point to continue to press for a Charter without a “notwithstanding” clause, while at the same time not foreclosing the possibility of a decision being taken at an appropriate time to include such a provision if this would bring a substantial number of provinces into the Charter.

[…]

CONFIDENTIAL

August 5, 1980

DISCUSSION DRAFT

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

1. The Canadian Charter of Rights and Freedoms recognizes the following fundamental rights and freedoms of everyone consistent with the principles of a free and democratic society under the rule of law.

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media; and
(c) freedom of peaceful assembly and of association.

Democratic Rights

3. Every citizen of Canada has, without unreasonable distinction or limitation, the right to vote in an election of members of the House of Commons or of a legislative assembly end to be qualified for membership therein.

4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date of the return of the writs tor the choosing of its members.

(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond the period of five years, if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.

5. There shall be a sitting of Parliament and of each legislature at least once in every year and not more than twelve months shall intervene between sittings.

Legal Rights

6. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except by due process of law.

7. Everyone has the right to be secure against unreasonable search and seizure.

8. Everyone has the right not to be arbitrarily detained or imprisoned.

9. Everyone has the right to be secure against arbitrary invasion of privacy.

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons;

(b) to retain and instruct counsel without delay; and

(c) to the remedy by way of habeas corpus for the determination of the validity of the detention and for release if the detention is not lawful.

11. Everyone accused of an offence has the right

(a) to be informed promptly of the specific offence;

(b) to be tried within a reasonable time;

(c) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

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

(e) not to be found guilty on account of any act or omission that at the time of the act or omission did not constitute an offence,

(f) not to be tried or punished more than once for an offence of which the person has been finally convicted or acquitted; and

(g) to the benefit of the lesser punishment where the punishment for an offence of which the person has been convicted has been varied between the time of commission and the time of sentencing.

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

13. A witness has the right when compelled to testify not to have any evidence so given used against him or her in any subsequent proceedings, except a prosecution for perjury or the giving of contradictory evidence.

14. A witness has the right not to be compelled to testify if denied counsel.

15. A party or witness has the right to assistance of an interpreter if that person does not understand or speak the language in which the proceedings are conducted.

Mobility Rights

16. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

(2) Every citizen of Canada and every person who has the status of a permanent resident has the right

(a) to move to and take up residence in any province; and (b) to acquire and hold property in, and to pursue the gaining of a livelihood in any province.

(3) The rights specified in subsection (2) are subject to any laws, rules or practices of general application in force in a province other than those that discriminate (unduly or unreasonably?) among persons primarily on the basis of province of present or previous residence or domicile.

Non-discrimination Rights

17. (1) Everyone has the right to equality before the law and to equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex.

(2) Nothing in this section precludes any programme or activity that has as its object the amelioration of conditions of disadvantaged persons or groups.

Official Languages

18. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada. (*)

(2) In addition, English and French have the status set forth in this Charter, and nothing therein limits the authority of Parliament or a legislature to extend the status or use of the two languages.

Language Rights

19. (1) Everyone has the right to use English or French in any of the debates or other proceedings of Parliament.

(2) Everyone has the right to use English or French in the debates of the legislature of any province.

20. (1) The statutes and the records and journals of Parliament shall be printed and published in English and French.

(2) The statutes and the records and journals of the legislatures ·of Ontario, Quebec, New Brunswick and Manitoba shall be printed and published in English and French.

(* New Brunswick may wish special provision added respecting status of English and French in that province.)

(3) The statutes and the records and journals of the legislature of each province not referred to in subsection (2) shall be printed and published in English and French to the greatest extent practicable accordingly as the legislature of the province prescribes.

(4) Where the statutes of any legislative body described in any of subsections (1) to (3) are printed and published in English and French, both language versions are equally authoritative.

21. (1) Either English or French may be used by any person in, or in any pleading or process in or issuing from, the Supreme Court of Canada or any court constituted by Parliament.

(2) Either English or French may be used by any person in, or in any pleading or process in or issuing from, any court of Ontario, Quebec, New Brunswick and Manitoba.

(3) Either English or French may be used by any person in, or in any pleading or process in or issuing from, any court of a province not referred to in subsection (2), to the greatest extent practicable accordingly as the legislature prescribes.

(4) Nothing in this section precludes the application of such rules as may be prescribed for the orderly implementation and operation of this section.

22. (1) Any member of the public in Canada has the right to communicate with and to receive services from any head or central office of an institution of government of Canada in English or French, and has the same right with respect to any other office of any such institution where that office is located within an area of Canada in which it is determined, in such manner as may be prescribed or authorized by Parliament, that a substantial number of persons within the population use that language.

(2) Any member of the public in a province has the right to communicate with and to receive services from any head, central or principal office of an institution of government of the province in English or French to the greatest extent practicable accordingly as the legislature prescribes. (*)

23. Nothing in sections 18 to 22 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the commencement of this Charter with respect to any language that is not English or French.

(* New Brunswick may wish special provision added respecting language of services to the public.)

24. (1) Citizens of Canada in a province who are members of an English-speaking or French-speaking minority population of that province have a right to have their children receive their education in their minority language at the primary and secondary school level wherever the number of children of such citizens resident in an area of the province is sufficient to warrant the provision out of public funds of minority language education facilities in that area.

(2) In each province, the legislature may, consistent with the right provided in subsection (1), enact provisions for determining whether the number of children of citizens of Canada who are members of an English-speaking or French-speaking minority population in an area of the province is sufficient to warrant the provision out of public funds of minority language education facilities in that area.

Undeclared Rights

25. The enumeration in this Charter of certain rights and freedoms shall not be construed to exclude, or to derogate from, any other fundamental rights or freedoms that may exist in Canada, including any rights or freedoms that may pertain to the native peoples of Canada.

General

26. Any law, order, regulation or rule that authorizes, forbids or regulates any activity or conduct in a manner inconsistent with this Charter is, to the extent of such inconsistency, inoperative and of no force or effect.

27. Where no other legal recourse or remedy is available, anyone whose rights or freedoms as declared by this Charter have been in fringed or denied to his or her detriment has the right to apply to a court of competent jurisdiction to obtain relief or remedy by way of declaration, injunction, damages or penalty as may be appropriate and just in the circumstances.

28. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory or the Northwest Territories or to the Council or Commissioner in Council thereof, as the case may be.

29. Nothing in this Charter confers any legislative authority on any body or authority except as expressly provided by this Charter. 30. Nothing in sections 19 to 21 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of· them, that exists or is continued by virtue of any other provision of the Constitution of Canada. (*)

31. A legislature of a province to which subsections 20(2) and 21(2) do not expressly apply may declare that one or both of these subsections shall have application, and thereafter any such provision shall apply to that province in the same terms as to any province expressly named therein.

(* Transitional provisions will be required for repeal of these provisions at an appropriate time.)