Memo from Fred Jordan to Roger Tassé, incl. Draft Charter of Rights and Section 1 Proposals (18 July 1980)
By: Fred Jordan, Government of Canada
Citation: Memo from Fred Jordan to Roger Tassé re Charter of Rights – Possible Modifications [with Possible Alternatives to Section 1 of July 4, 1980 Draft & Revised Discussion Draft (16 July 1980)] (18 July 1980).
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July 18, 1980
MEMORANDUM TO ROGER TASSE
Re: Charter of Rights – Possible Modifications
Further to our discussions earlier this week, I attach for consideration of members of the federal delegation involved in the Charter of Rights
(1) possible alternatives to section 1 of the July 4 Charter draft that we may wish to advance at Committee meetings next week, and
(2) a revision draft of the Charter (dated July 16) reflecting some of the changes we discussed but that we may or may not want to raise at this point in Committee.
1. Section 1 – of the two alternatives set out, I would prefer “B” from a legal perspective, but will either be acceptable to the provinces and ensure that intended limits are recognized in court interpretations?
2. Section 2 – eliminating the preambular clause to democratic rights would appear to take nothing away from the specific rights and obligations that follow it.
3. Section 6 – we might want to consider here further modifications to meet some provincial objections, e.g.:
– separating due process of law clause from specific rights that follow,
– removing “unlawful” from privacy rights and perhaps putting privacy and search and seizure rights on equal footing by qualifying each with “unreasonable or arbitrary”,
– restoring right to counsel on arrest or detention to language of 1960 Bill of Rights,
– making clear that right to counsel and interpreter does not extend to police questioning at scene of incident.
4. Section 10 – consider inserting in official languages the principle of section 2 of Official Languages Act. I think it can safely be done.
5. Sections 12 and 13 – consider adding a delay period for ultimate implementation of language rights in statutes and courts of Ontario and Manitoba. In addition, could we contemplate allowing all provinces to determine areas of province in which court language rights are essential?
6. Section 16 – consider changes found in 16(1) to make test “primarily spoken language” and modifications in provincial powers under 16(2). I see too many problems in trying to adapt Bill 101 language tests to the Charter.
Perhaps these and other aspects of the Charter can be discussed next Monday. Gordon Barnett will be sending to you later today in Ottawa comments on entrenching the 1960 Bill of Rights and the Charter provisions. I will have some further comments for you in Vancouver on Monday.
cc: Michel Robert (with attachments)
Pierre Genest “ ”
Barry Strayer “ ”
Nick Gwyn “ ”
Gordon Barnett “ ”
July 16, 1980
CHARTER OF RIGHTS
Possible Alternatives to Section 1 of July 4, 1980 Draft
1. The Canadian Charter of Rights and Freedoms guarantees the fundamental rights and freedoms of individuals in Canada in accord with the principles of a free and democratic society [under the rule of law].
1. The Canadian Charter of Rights and Freedoms guarantees the fundamental rights and freedoms of individuals in Canada subject only to such reasonable limits as are generally recognized in our free and democratic society.
Note: The adoption of one of these alternatives, or some variation thereof, would eliminate the necessity of spelling out the particular limitations found in sections 2(2), 6(3) & (4), 8(3) and 9(3).
July 16, 1980
REVISED DISCUSSION FRAFT
(For members of Federal Delegation)
THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the fundamental right sand freedoms of individuals in Canada in accord with the principles of a free and democratic society under the rule of law.
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, opinion and expression, including freedom in the dissemination of news, opinion and belief; and
(c) freedom of peaceful assembly and of association.
Democratic rights of citizens
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 and to be qualified for membership therein.
Duration of elected legislative bodies
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 for the choosing of its members.
Continuation in special circumstances
(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.
Annual sitting of elected legislative bodies
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.
6. (1) Everyone has the right to life, liberty and security of his or her person and the right not to be deprived thereof except by due process of law, which process encompasses:
(a) the right to be secure against unreasonable searches and seizures;
(b) the right to protection against arbitrary or unlawful interference with privacy;
(c) the right not to be detained or imprisoned except on grounds provided by law and in accordance with prescribed procedures;
(d) the right on arrest or detention
(i) to be informed promptly of the reason for the arrest or detention,
(ii) to be provided with the opportunity to retain and consult counsel without delay, and
(iii) to the remedy by way of habeas corpus for the determination of the validity of his or her detention and for release if the detention is not lawful;
(e) the right of a person charged with an offence
(i) to be informed of the specific charge,
(ii) to be tried within a reasonable time,
(iii) to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal,
(iv) not to be denied reasonable bail without just cause having been established, and
(v) 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) the right not to be tried or punishe d more than once for an offence of which he or she has been finally convicted or acquitted;
(g) the right to the benefit of the lesser punishment where the punishment for an offence of which he or she has been convicted has been varied between the time of commission and the time of sentencing;
(h) the right not to be subjected to any cruel and unusual treatment or punishment;
(i) the right , when compelled to give evidence before any court, tribunal, commission, board or other authority, to counsel, to protection against self-crimination and to any other constitutional safeguard;
(j) the right to the assistance of an interpreter in any proceedings before a court, tribunal, commission, board or other authority, if the party or witness does not understand or speak the language in which the proceedings are conducted.
(2) Everyone has the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his or her rights or obligations.
Non- discrimination Rights
Equality before the law and equal protection of the law
7. (1) Everyone has the right to equality before the law and to equal protection of the law without unreasonable distinction or restriction.
Affirmative action programmes
(2) Nothing in this section precludes any programme or activity authorized by or pursuant to law that has as its object the amelioration of conditions of disadvantaged persons or groups.
Rights of citizens
8. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
Rights of citizens and permanent residents
(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 or territory, and
(b) to acquire and hold property in, and to pursue the gaining of a livelihood in, any province or territory,
subject to any laws of general application in force in that province or territory other than any such laws that discriminate among persons to whom this provision applies primarily on the basis of province or territory of present or previous residence or domicile.
9. (1) Everyone has the right to the use and enjoyment of property, individually or in association with others, and the right not to be deprived thereof except in accordance with law and for reasonable compensation.
(2) Nothing in this section renders invalid laws controlling or restricting the use of property in the public interest or securing against property the payment of taxes or duties or other levies or penalties.
Official languages of Canada
10. (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.
Status of languages and extension thereof
(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.
Proceedings of Parliament
11. (1) Everyone has the right to use English or French in any of the debates or other proceedings of Parliament.
Debates of legislative assembly
(2) Everyone has the right to use English or French in the debates of the legislative assembly of any province.
Statutes and records, etc., of Parliament
12. (1) The statutes and the records and journals of Parliament shall be printed and published in English and French
Statutes and records, etc., of certain legislatures
(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.
(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.
Both versions of statutes authoritative
(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.
Proceedings in Supreme Court and courts constituted by Parliament
13. (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.
Proceedings in courts of certain provinces
(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.
Proceedings in relation to certain offences
(4) In proceedings in any court in Canada relating to an offence
(a) created by or pursuant to an Act of Parliament,
(b) created by or pursuant to an Act of a legislature if the punishment for the offence may be imprisonment,
any person giving evidence before the court has the right to be heard in English or French, through the services of an interpreter where necessary, and the right not to be placed at a disadvantage in so being heard.
Rules for orderly implementation and operation
(5) Nothing in this section precludes the application of such rules as may be prescribed by any competent body or authority for the orderly implementation and operation of this section.
Communication by public with government of Canada
14. (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 principal 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.
Communication by public with government of a province
(2) Any member of the public in a province has the right to communicate with and to receive services from any head, central or other principal office of an institution of government of the province in English or French to the extent to which and in the areas of the province in which it is determined, in such manner as may be prescribed or authorized by the legislature, that the right should pertain having regard to the practicability and necessity of providing such services.
Rights and privileges preserved
15. Nothing in sections 10 to 14 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.
Language of educational instruction
16. (1) Citizens of Canada in a province whose primarily spoken language (mother tongue?), whether English or French, is that of the linguistic minority population of that province have a right to have their children receive their education in that language at the primary and secondary school level wherever the number of such children 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.
Laws to implement minority language education right
(2) In each province the legislature may enact laws to render effective the rights provided in subsection (1).
Undeclared rights and freedoms
17. Nothing in this Charter abrogates or derogates from any right or freedom not declared by it that may exist in Canada, including any right or freedom that may pertain to the native peoples of Canada.
Laws, etc. not to apply so as to abrogate declared rights and freedoms
18. Any law or administrative act that is inconsistent with a provision of the Charter is inoperative and of no force or effect to the extent of the inconsistency.
Enforcement of declared rights and freedoms
19. Where no other effective recourse or remedy is available or provided for by law, anyone whose rights or freedoms as declared by this Charter have been infringed or denied to his or her detriment has the right to apply to a court of competent jurisdiction to obtain such relief or remedy as the court deems appropriate and just in the circumstances.
Application to territories and territorial institutions
20. A reference in any of sections 3 to s : and 10 to 16 to a province or to the legislative assembly or legislature of a province includes a reference to the Yukon Territory or the Northwest Territories or to the Council or Commissioner in Council thereof, as the case may be.
Legislative authority not intended
21. Nothing in this Charter confers any legislative authority on any body or authority except as expressly provided by this Charter.
Continuation of existing constitutional provisions
22. Nothing in sections 11 to 13 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. (1)
Application of sections 12 and 13
23. A legislature of a province to which subsections 12(2) and 13(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.
NOTE: (1) This provision has application until such time as specific provisions in the present Constitution may be repealed.