REPORT: Cruel & Unusual Punishment, Section 12 of the Constitution Act, 1982

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Date: 2023-07-12 [Updated: 2023-08-11]
By: PrimaryDocuments.ca
Citation: PrimaryDocuments.ca, Section 12, Cruel & Unusual Punishment: Compilation of primary documents to assist in interpreting the public meaning of Section 12 of the Constitution Act, 1982, Second Ed. (August 2023).
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SECTION 12 Cruel & Unusual Punishment

Compilation of primary documents to assist in interpreting the public meaning of Section 12 of the Constitution Act, 1982

Second Edition

August, 2023

The Constitution Act, 1982

Part I. Canadian Charter of Rights and Freedoms

Legal Rights

Treatment or punishment

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

Short Table of Contents

Part 1: The Drafting History of the Charter of Rights and Freedoms Pertaining to Section 12’s Public Meaning
Part 2: The Primary Record (Debates, Papers, Committees…) Pertaining to Section 12’s Public Meaning
Endnotes

PART 1:

Drafting History of the Charter of Rights and Freedoms Pertaining to Section 12’s Public Meaning

Drafts of the Charter of Rights and Freedoms:

January 8, 1979: Canadian Charter of Rights & Freedoms, Federal Draft, tabled at Meeting of Officials on the Constitution, (January 11-12, 1979)
October 17, 1979: Rights and Freedoms within the Canadian Federation, Federal Draft, tabled at the Continuing Committee of Ministers on the Constitution (October 22-23, 1979)
November 5, 1979: Rights and Freedoms within the Canadian Federation, Federal Draft, tabled at the Meeting of Officials on the Constitution (November 15-16, 1979)
July 4, 1980: Rights and Freedoms within the Canadian Federation, Discussion Draft, Tabled at the Continuing Committee of Ministers on the Constitution (July 8-11, 1980)
August 22, 1980: The Canadian Charter of Rights and Freedoms, Federal Draft, Tabled at the Continuing Committee of Ministers on the Constitution (August 26-29, 1980)
August 28, 1980: Charter of Rights and Freedoms, Report to Ministers by Sub-Committee Officials [Provincial Draft], Tabled at the Continuing Committee of Ministers on the Constitution (August 26-29, 1980)
September 3, 1980: The Charter of Rights and Freedoms, Revised Discussion Draft, Federal, tabled at the Federal-Provincial First Ministers’ Conference (September 8-12, 1980)
October 2, 1980: Proposed Resolution for a Joint Address to Her Majesty the Queen Respecting the Constitution of Canada
January 12, 1981: Draft submitted to the Special Joint Committee on the Constitution of Canada
February 13, 1981: Draft Tabled in House of Commons from the Special Joint Committee on the Constitution [Final Report]
April 23, 1981: House of Commons Draft, used in Reference Re: Resolution to Amend the Constitution
November 18, 1981: House of Commons Draft
November 24, 1981: House of Commons Draft
November 26, 1981: House of Commons Draft
December 2, 1981: House of Commons Draft & Vote

Statutes and International Agreements:

1960: An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms (Canadian Bill of Rights)
1978: Bill C-60: An Act to amend the Constitution of Canada

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Drafts of the Charter of Rights and Freedoms

January 8, 1979: Canadian Charter of Rights & Freedoms, Federal Draft, tabled at Meeting of Officials on the Constitution, (January 11-12, 1979)

[…] (h) the right not to be subjected to any cruel or inhuman treatment or punishment;

(Source: Meeting of Officials on the Constitution, Canadian Charter of Rights & Freedoms, Federal Draft, [January 8, 1979] (Ottawa: 11-12 January, 1979). Click HERE)

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October 17, 1979: Rights and Freedoms within the Canadian Federation, Federal Draft, tabled at the Continuing Committee of Ministers on the Constitution (October 22-23, 1979)

[…] (h) the right not to be subjected to any cruel and inhuman treatment or punishment;

(Source: Continuing Committee of Ministers on the Constitution, Rights and Freedoms within the Canadian Federation Federal Draft , [October 17, 1979] (Halifax: 22-23 October, 1979). Click HERE)

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November 5, 1979: Rights and Freedoms within the Canadian Federation, Federal Draft, tabled at the Meeting of Officials on the Constitution (November 15-16, 1979)

[…] (h) the right not to be subjected to any cruel and inhuman treatment or punishment;

(Source: Meeting of Officials on the Constitution, Rights & Freedoms within Canadian Federation, Federal Draft, [November 5, 1979], Doc 840-177/005 (Toronto: 15-16 November, 1979). Click HERE)

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July 4, 1980: Rights and Freedoms within the Canadian Federation, Discussion Draft, Tabled at the Continuing Committee of Ministers on the Constitution (July 8-11, 1980)

[…] h) the right not to be subjected to any cruel and unusual treatment or punishment;

(Source: Meeting of the Continuing Committee of Ministers on the Constitution, Rights and Freedoms within the Canadian Federation, Discussion Draft. Tabled by the Delegation of the Government of Canada, 4 July 1980, Doc 830-81/027 (Montreal: 8-11 July 1980). Click HERE)

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August 22, 1980: The Canadian Charter of Rights and Freedoms, Federal Draft, Tabled at the Continuing Committee of Ministers on the Constitution (August 26-29, 1980)

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

(Source: Continuing Committee of Ministers on the Constitution, The Canadian Charter of Rights and Freedoms, Federal Draft , [August 22, 1980] Doc 830-84/004 (Ottawa: 26-29 August 1980). Click HERE)

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August 28, 1980: Charter of Rights and Freedoms, Report to Ministers by Sub-Committee Officials [Provincial Draft], Tabled at the Continuing Committee of Ministers on the Constitution (August 26-29, 1980)

10. Everyone has the right not to be subjected to any cruel and unusual punishment.

(Source: Continuing Committee of Ministers on the Constitution, Charter of Rights, Report to Ministers by Sub-Committee of Officials, Annex [August 28, 1980], Doc 830-84/031 (Ottawa: 26-29 August, 1980). Click HERE)

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September 3, 1980: The Charter of Rights and Freedoms, Revised Discussion Draft, Federal, tabled at the Federal-Provincial First Ministers’ Conference (September 8-12, 1980)

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

(Source: Federal-Provincial First Ministers’ Conference, The Canadian Charter of Rights and Freedoms, Revised Discussion Draft, Federal, [September 3, 1980] Doc 800-14/064 (Ottawa: 8-12 September 1980). Click HERE)

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October 2, 1980: Proposed Resolution for a Joint Address to Her Majesty the Queen Respecting the Constitution of Canada

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

(Source: Canada, Parliament, “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” in Sessional Papers (1980). Click HERE)

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January 12, 1981: Draft submitted to the Special Joint Committee on the Constitution of Canada

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

(Source: 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 36 (12 January 1981). Click HERE)

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February 13, 1981: Draft Tabled in House of Commons from the Special Joint Committee on the Constitution [Final Report]

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

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April 23, 1981: House of Commons Draft, used in Reference Re: Resolution to Amend the Constitution

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

(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 9470-9471. Click HERE)

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November 18, 1981: House of Commons Draft

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

(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 12983-13011. Click HERE)

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November 24, 1981: House of Commons Draft

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

(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 4128-4130. Click HERE)

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November 26, 1981: House of Commons Draft

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

(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 13338-13346. Click HERE)

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December 2, 1981: House of Commons Draft & Vote

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

(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 13632-13663. Click HERE)

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Statutes and International Agreements

1960: An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms (Canadian Bill of Rights)

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

[…]

(b) impose or authorize the imposition of cruel and unusual treatment or punishment;

[…]

(Source: An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms, SC, 1960, c 44). Click HERE)

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June 20, 1978: Bill C-60: An Act to amend the Constitution of Canada

7. […] —the right not to be subjected to any cruel and unusual treatment or punishment.

(Source: Bill C-60, An Act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters, 3rd Sess, 30th Parl, SC, 1978 (June 20, 1978). Click HERE)

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PART 2:

The Primary Record (Debates, Papers, Committees…) Pertaining to Section 12’s Public Meaning

1969, Pierre Trudeau, The Constitution and the People of Canada presented to Federal-Provincial First Ministers’ Conference (February 10-12, 1969) (click HERE), p. 52
May 29, 1972, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Final Report, p. 20
August, 1978, Otto Lang, Constitutional Reform: The Supreme Court of Canada, presented at Federal-Provincial First Ministers’ Conference (October 30-November 1, 1978)
February 5-6, 1979, Federal-Provincial Conference of First Ministers on the Constitution, Federal Draft Proposals Discussed by First Ministers (click HERE)
July 5, 1980, Charter of Rights and Freedoms, Background Notes, Tabled at Continuing Committee of Ministers on the Constitution, (July 8-11, 1980) (click HERE), p. 2
October 6, 1980, Debate in the House of Commons (click HERE), p. 3284
October 14, 1980, Debate in the Senate (click HERE), p. 852
November 12, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 3 (click HERE), p. 27
November 18, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 7 (click HERE), p. 17
November 20, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 9 (click HERE), pp. 57, 144
December 2, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 17 (click HERE), pp. 85, 91
December 8, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 21 (click HERE), p. 46
December 18, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 29 (click HERE), p. A:17
January 21, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 42 (click HERE), p. 7
January 28, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 47 (click HERE), pp. 7, 73
March 11, 1981, Debate in the House of Commons (click HERE), p. 8133
March 18, 1981, Debate in the House of Commons (click HERE), p. 8383
April 2, 1981, Debate in the House of Commons (click HERE), p. 8903
April 21, 1981, Debate in the House of Commons (click HERE), p. 9363
April 22, 1981, Debate in the House of Commons (click HERE), p. 9417

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Note: The following is a selection of excerpts, not intended to be an exhaustive summary. The reader is encouraged to view the document as a whole.

1969: Pierre Trudeau, The Constitution and the People of Canada presented to Federal-Provincial First Ministers’ Conference (February 10-12, 1969) (click HERE), p. 52

2. The Charter should also recognize and guarantee in Canada the following rights:

(a) the right of the individual to be secure against unreasonable searches and seizures;

(b) the right of a person who has been arrested or detained

(i) to be informed promptly of the reason for his arrest or detention

(ii) to retain and instruct counsel without delay, and

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

(c) the right of a person not to give evidence before any court, tribunal, commission, board or other authority if he is denied counsel, protection against self-crimination, or other constitutional safeguards;

(d) the right of a person to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

(e) the right of a person charged with an offence to be presumed innocent until proved guilty according to law in a fair hearing by an independent and impartial tribunal, and the right not to be denied reasonable bail without just cause;

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[French translation of previous page]

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(f) the right of a person to the assistance of an interpreter in any proceedings in which he is involved as a party or witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted;

(g) the right of a person not to be held guilty of an offence on account of any act or omission which at the time of its commission or omission did not constitute an offence, and the right of a person on being found guilty of an offence not to be subjected to a penalty heavier than the one applicable at the time the offence was committed;

(h) the right of a person not to be subjected to cruel and unusual treatment or punishment.

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May 29, 1972, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Final Report, p. 20

We also strongly recommend the inclusion in a Bill of Rights of other basic legal rights such as those already contained in the Canadian Bill of Rights. We adopt the formulation of these rights in the Federal Government’s constitutional proposals put forward in The Constitution and the People of Canada at page 52:

(a) the right of the individual to be secure against unreasonable searches and seizures;

(b) the right of a person who has been arrested or detained

(i) to be informed promptly of the reason for his arrest or detention

(ii) to retain and instruct counsel without delay, and

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

(d) the right of a person to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

(h) the right of a person not to be subjected to cruel and unusual treatment or punishment.

We believe that these traditional legal rights are sufficiently well accepted by our society not to require any special defence as human rights. We presume that the only question is whether they are better protected constitutionally or legislatively. We have already stated our general position that constitutional protection is necessary.

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August, 1978: Otto Lang, Constitutional Reform: The Supreme Court of Canada, presented at Federal-Provincial First Ministers’ Conference (October 30-November 1, 1978)

Section 7 sets forth a number of specific individual legal rights many of which are in terms identical to those found in the provisions of section 2 of the Canadian Bill of Rights. However, unlike the introductory words of the latter, the opening words of section 7 contain no qualifications. Hence, it will not be possible under the Charter to declare in a statute that it shall override the provisions of the Charter. Nor are the courts simply invited to “construe” or ” apply” a law in a manner which will not infringe the protected legal rights. Section 7 clearly declares that individuals shall enjoy and continue to enjoy the specified rights, and section 23 declares that no law shall apply so as to infringe these rights, a clear direction to the courts to strike down offending laws.

The following provisions of section 7 are identical to those found in the Canadian Bill of Rights:

— protection against arbitrary detention, imprisonment or exile

— rights of detained or arrested persons

— right to refuse to testify without legal safeguards

— right to assistance of an interpreter

— right to a fair hearing

— rights of an individual charged with an offence (with some additional protections noted below)

— protection against cruel and unusual punishment or treatment.

By and large these provisions are specific elements of the concepts of “due process of law” or “principles of fundamental justice.” All of these rights find their counterparts in the several international instruments. ln addition, most of them are reflected in the Quebec Human Rights Charter and a few are contained in the Saskatchewan Bill of Rights. However, although most of these rights were proposed by the federal government in 1969 for inclusion in an entrenched Charter, none of them was included in the Victoria Charter. The Special Joint Committee Report in 1972 recommended that all the legal rights contained in the federal government ‘s proposals be included in an entrenched Bill of Rights.

One that was not contained among the federal government’s proposals in 1969 was the protection against arbitrary detention, imprisonment or exile. This provision is, however, found in the Universal Declaration of Human Rights and it would thus seem appropriate to retain it in the Charter.

On a related question, the Special Joint Committee Report of 1972 remarked on the omission from the Victoria Charter of any protection against the loss of citizenship and recommended that citizenship, once legally acquired, should be made inalienable. Since there may be exceptional situations where a country could be justified in revoking a person’s citizenship, it is perhaps preferable not to make the right inalienable. It may be noted, however, that the Universal Declaration provides that no one shall be arbitrarily deprived of his nationality, and the U.N. Covenant on Civil and Political Rights provides that no one shall be arbitrarily denied the right to enter his own country.

In its 1969 proposals the federal government recommended two additional legal rights for inclusion in the Charter of Human Rights and these are contained in the proposed new Charter.

The right to be secure against unreasonable searches and seizures is an important new right which would protect an individual against police carrying out searches or seizures against him or his property in an unreasonable manner, even though the police have the necessary authorization to make a search or seizure. Thus, for example, a search of an individual’s home at 4 a.m. could be held by the court to be unreasonable unless the police are able to demonstrate otherwise. Equally, the seizure of a person’s property or goods in his possession could be held to be unreasonable unless the police can show the property to be essential evidence of a suspected offence. Therefore, a violation of this provision might result in the courts holding that evidence so obtained is inadmissible in any subsequent proceedings.

The Universal Declaration provides that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, and the U.N. Covenant re-affirms this protection. Under Quebec’s Charter a person’s home is declared inviolable.

This proposed addition to individual legal rights was endorsed by the Special Joint Committee Report.

Protection against ex post facto laws creating crimes and punishment retroactively is also an important addition to the Charter, giving recognition to basic principles of our criminal law. Under this provision no person could be tried for an act that was not a recognized offence at the time it was committed; nor could a convicted person be given a harsher penalty than that prescribed for an offence at the time of its commission.

These rights are expressly recognized in the Universal Declaration and the U.N. Covenant. The Quebec Charter precludes the retroactive application of penal laws.

This proposed addition to individual legal rights was endorsed by the Special Joint Committee Report.

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February 5-6, 1979, Federal-Provincial Conference of First Ministers on the Constitution, Federal Draft Proposals[1] Discussed by First Ministers (click HERE)

11. Protection against cruel and unusual punishment or treatment.

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July 5, 1980: Charter of Rights and Freedoms, Background Notes[2], Tabled at Continuing Committee of Ministers on the Constitution, (July 8-11, 1980) (click HERE), p. 2

Among the many important rights provided for under the draft Charter, each Canadian would be guaranteed the right to life, liberty and security and the right not to be deprived of these “except by due process of law” the major elements of which are listed in the Charter. The proposed Charter enumerates the various considerations which would guide law enforcement agencies and courts when a person is arrested, detained, tried or punished, or otherwise involved in the legal process. Although many of the rights contained in this section are already available to most Canadians, they are not mandatory and could be changed as the result of the decision of Parliament or, in some cases, of a legislature.

The draft Charter places no limitations on these rights other than in time of “serious public emergency threatening the life of the country”. Even under those circumstances, the right to life, the right to be provided with opportunity to retain and consult a lawyer, freedom from cruel or unusual treatment or punishment and many other basic legal rights may not be infringed.

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October 6, 1980, Debate in the House of Commons (click HERE), p. 3284

Mr. Chrétien: The ethnic communities in Canada above all others understand the importance of an enshrined charter of rights and freedoms.

I appeal to the Leader of the Opposition, as a western Canadian, not to forsake the legacy of John Diefenbaker;

I appeal to him not to oppose a measure which is of such importance to Canadians of so many different cultural backgrounds. As a westerner and as the leader of a party which has

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always upheld the rights of the individual over the state, he should not oppose a measure containing a charter of rights.

Some have told us that provincial legislatures are better able than the courts to protect the rights and freedoms of Canadians. If rights and freedoms were to be dependent upon the governments of individual provinces, there would be no such thing as rights and freedoms common to all Canadians.

I believe that Canadians, wherever they live in Canada, should have common rights and freedoms. I am supported in this view by the special joint committees of the Senate and the House of Commons which, both in 1972 and in 1978, recommended the entrenchment in the constitution of a charter of rights. And it was once again proposed in Halifax in October 1979 by the federal government at a meeting of the continuing committee of ministers on the constitution. I remind the House that this proposal was made in Halifax by the government led by the Leader of the Opposition.

The case for a charter of rights was made eloquently by the constitutional committee of the Canadian Bar Association, and I quote:

The symbolic and educational importance of proclaiming the rights of the individual as being beyond the power of a transient legislative majority can scarcely be exaggerated. A clear statement in the constitution of the fundamental values all Canadians share would, we think, have an important unifying effect. It would inculcate in all citizens, young and old, a consciousness of the importance of civil liberties and an authoritative expression of the particular rights and liberties our society considers fundamental. To the politician and the public servant, it would provide an authoritative standard for scrutinizing not only statutes but delegated legislation.

Beyond its symbolic and educational functions, a bill of rights can be an effective instrument of enforcement, particularly of fundamental political and legal rights. The courts can declare laws that violate constitutional rights invalid. In the absence of guaranteed rights, a transient majority in Parliament or a legislature can do incalculable harm to a minority or an individual. Unlike existing human rights legislation, which can always be abrogated or modified by statute, it would constrain future legislatures and governments from acting in violation of human rights. This protection is all the more important in our modern administrative state where there is such a vast quantity of delegated legislation that is not subjected to the type of questioning involved in parliamentary debate.

It is true that there are now non-constitutional bills of rights at the federal and provincial levels. But these are mere legislative directions to the courts as to how legislation is to be interpreted. Constitutional entrenchment should encourage courts to take a stronger stand to protect fundamental rights.

The resolution before the House provides for a Canadian charter of rights and freedoms binding upon Parliament, all provincial legislatures and all governments. The rights and freedoms in the charter include: freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of information; freedom of peaceful assembly and of association; the right to vote and to stand for office, and the right to elections at least once every five years.

Sections 7 to 14 of the charter set out basic legal rights of Canadians. Some of these rights derive from the Canadian Bill of Rights and some are new. Of the latter, some derive from the International Covenant on Civil and Political Rights. I might remind the House that before adhering to the covenant, the federal government received the consent of all provinces. If provincial governments agreed to be bound by the International Covenant on Civil and Political Rights, they should not object to being bound by a Canadian charter of rights and freedoms.

The legal rights include the rights to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice; the right to be secure against search or seizure except on grounds and in accordance with procedures established by law.

There is the right not to be arbitrarily detained or imprisoned except on grounds and in accordance with procedures established by law; the right on arrest or detention to be informed promptly of the reasons, to retain and instruct counsel without delay, the right to obtain the remedy of habeas corpus.

Section 11 provides certain fundamental protections to those charged with an offence.

The protections include the right to be informed promptly of the charge; to be tried within a reasonable time; to be presumed innocent until proven guilty in a fair and public trial, and to be granted bail where appropriate. The rights also include protection against being found guilty if an act wasn’t an offence when it occurred and against being tried twice for the same offence. In addition, if punishment is changed between the time the act occurs and sentencing, only the lesser punishment may be imposed.

In addition, the charter enshrines the right not to be subjected to any cruel or unusual punishment, the right of witnesses to protection against self-incrimination, and the right to assistance of an interpreter in court proceedings.

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October 14, 1980, Debate in the Senate (click HERE), p. 852

Senator Perrault: Legal rights comprise the right of life, liberty and security of the person; protection against unlawful search or seizure and unlawful detention or imprisonment; the right upon arrest to be promptly informed of the reasons and to be able to retain counsel without delay; the right upon being charged with an offence to be informed promptly of the specific offence; to be charged within a reasonable time; to be presumed innocent until proven guilty; not to be denied reasonable bail without just cause; not to be found guilty on account of any act or omission that was not an offence when committed; not to be tried or punished more than once for an offence; not to be subject to cruel or unusual punishment; not to have evidence given used for self-incrimination in subsequent proceedings, and the right to the assistance of an interpreter.

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November 12, 1980: Svend Robinson, Jean Chrétien, & Roger Tassé (Q.C., Deputy Minister), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 3 (click HERE), p. 27

Mr. Robinson: Mr. Chairman, I have a number of questions for the Minister relating in particular to the Charter of Rights sections of the proposed constitutional package and as the Minister is well aware certainly we support the principle of an entrenched bill of rights.

However, I want to ask the Minister in particular about clause one of this proposed Charter of Rights and Freedoms because I suggest that in its present wording it is a gaping hole in the Charter which really makes the alleged rights and freedoms which are supposed to be protected completely illusory; and in fact if this section one is permitted in its present form that in many ways we will be in a worse position in this country than had this particular Charter not been implement-

Mr. Minister, first of all with respect to clause one I would like to ask you who would determine what is generally accepted as a limitation on these rights and freedoms, and what test would they apply? Would it be a numerical test?

Mr. Chrétien: It will be the court who will decide. The way I understand the courts to operate, the precedents will determine the next move. It will be the court because we are not giving them other tests than these.

Mr. Robinson: How will it be determined what is generally accepted? Will that be in terms of numbers, if the majority of Canadians accept particular limitations? Would this be your understanding of that provision?

Mr. Chrétien: I do not want to pass judgment for what the court will say but I do think there is some, as I explained earlier, there is some historical situation, trends in society, that they can measure; whether it be in terms of numbers and so on.

Of course, we are putting a charter there for one reason, to protect the minorities against the abuses of the majority. We have improved fantastically over the past 50 or 75 years in Canada in terms of tolerance in our society and so on and they will have the test of what is reasonable in their minds in

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relation to those rights that are there. I do not see them turning back the clock; it will be in terms of progress and in terms of protection.

Mr. Robinson: Mr. Minister, let me ask you a specific question using an example from 1970.

In 1970 the proclamation of the War Measures Act was supported, according to the Gallup Poll, by some 85 per cent of Canadians.

Would it be your intention that this particular provision would act in such a way as to provide general acceptance, certainly at least in numerical terms, general acceptance of the measures which were taken in 1970 pursuant to the War Measures Act.

Mr. Chrétien: I think that if the War Measures Act was to be re-enacted under some possible circumstances in the future of course the Bill of Rights will apply and some of these so—called abuses that occurred at that time would be limited by this, in terms of individual rights.

We are not as well protected as we will be when this Charter is in effect.

Mr. Robinson: Which specific abuses then would you consider to have not been generally accepted in 1970?

Mr. Chrétien: I do not know, perhaps some individual, for example, did not have permission to see their lawyer within a reasonable time. Now, under the Bill of Rights, the right to go to court and to have recourse according to that Charter would be provided.

I think when we go into the analysis of all those clauses, my officials would be willing to make some specific comments about the application of the Bill of Rights in relation to a future proclamation of the War Measures Act.

Mr. Robinson: Mr. Minister, would you not agree that it is important that Canada at least as a minimum in our domestic law accept the criteria which we are bound by under the International Covenant on Civil and Political Rights that binds us both federally and provincially.

Mr. Chrétien: I do think that the rights that we have agreed upon in international agreements should be reflected in the laws or the Charter of Rights that we will have in Canada.

Mr. Robinson: In view of that and accepting that as a principle why is it, Mr. Minister, and perhaps your officials can assist you, that the International Covenant on Civil and Political Rights states very clearly in part two, article four that the delegation from the rights that are set out in that particular charter, that particular covenant, can only be made under very defined circumstances and that there are certain rights which can never have limitations put on them; even if those limitations are generally acceptable in Canadian society.

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

Mr. Tassé: Mr. Robinson, I would think that in effect the courts will read this as an objective test that is being spelled out in section one and that in effect they would have to address their mind as to whether the restrictions that are being chal-

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lenged before the court are generally acceptable ones in a democratic society. I think in coming to that conclusion it would be quite legitimate for them to look at the International Covenant and see whether in the kind of society that we live that is the kind of restrictions that are being challenged and are before the Courts and should stand as a legitimate and justifiable restriction.

Mr. Robinson: The International Covenant, if you accept that as being a guideline which the court should accept, under the International Covenant, there could never be even in time of war or apprehended insurrection, for example, discrimination on the basis of race, colour, sex, language, religion or social origin. There can never be the use of torture or cruel and unusual punishment.

Now, Mr. Minister, would you be prepared to consider an amendment to section one of this Charter to at least bring it into conformity with those minimum guidelines which we have accepted under the International Treaty.

Mr. Chrétien: You are asking me the question, but if you have some very precise suggestion I am willing to consider that of course, but, as we say, the Charter of Rights is a minimum, it is not an absolute.

There will be other legislation in terms of human rights that will be formulated by different levels of government. One restriction that we are suggesting in this Bill of Rights was to find now the equilibrium in the discussions that we had with the Auditor Generals in the summer, that it was more or less acceptable at that time. If it is a minimum, we can always improve on it.

Mr. Robinson: Mr. Minister, I appreciate your undertaking to look at reasonable amendments to section I and I would like to turn to another section and to take up a comment that you made earlier, a very important comment with respect to the role of the Charter of Rights being to protect minorities from a majority at any given time.

I assume that you feel that that is a cardinal principle in this charter, do you?

Mr. Chrétien: Yes.

Mr. Robinson: You have indicated in the affirmative.

If that is the case, Mr. Minister, how can you possibly justify the use of the referendum process which would permit a simple majority, albeit requiring regional majorities, but which would permit a simple majority at any given time to take away any of the rights in the Charter.

Mr. Chrétien: The problem is you could have a situation where you have to change the Charter of Rights, and there could be some objections by certain sectors of the community. I think in the last analysis it might be that the people of Canada will arbitrate but the process is such that there will be considerable debate about this situation. For example, should a situation occur that we would want to amend the Bill of Rights, we would have to discuss that first with the Provinces and if we want to have the amendment we would have six provinces representing the majority of the government to agree

[Page 30]

to it, come to the Parliament of Canada to agree, and it would be amended.

If there is a deadlock between the federal government and the provinces and it is a difficult situation, after all that process we could go to the people of Canada. I think that you have in some circumstances the possibility of, through a lengthy process like that. to be able to amend the constitution. I would agree with you if there was to be capricious intervention of the federal government to limit rights but that would not be possible because this process involves very lengthy debates and many debates at both levels of government.

Mr. Robinson: Mr. Minister, there is a very important question which you have not answered here and that is quite simply that you have said that minorities should be protected from the majority at any given time, and that is one of the provisions of the Charter.

If it is not the position that the provinces and the federal government together, using the existing amending formula, cannot arrive at a consensus on amendments to the Charter, how is it that you would permit a simple majority of Canadians in a referendum to take away these rights which in fact are meant to protect minorities.

Would you be prepared to consider or at least to examine the possibility of restricting the referending mechanism to cases of deadlock because what we are talking about is surely deadlock between levels of government, and not cases where the Charter of Rights is affected.

Is that not really your concern?

Mr. Chrétien: I do not know what you mean. I just said that there will be a referendum only after deadlocks that had to be clearly established.

Of course, I said earlier in replying to a question from a member that Section 41 will have to be clarified to make sure that it is completely exhausted before Section 42 occurs. I recognize that there is a problem there and I have said to the Committee that we will clarify that situation, that the process will be such that consultation will occur with the provinces: a deadlock will have to be realized; there will be, after the realization of the deadlock, as outlined in the letter from the Prime Minister to Mr. Davis and in reply to some objection of Mr. Blakeney, a cooling-off period of whatever—a year before we can have a referendum.

I am just saying that there will be many debates before we can take away, in your expression, some of the rights that are under the Constitution.

Mr. Robinson: One final question, Mr. Chairman, if I may.

I would of course point out that you have confirmed that at any given time. even after deadlock. that a majority of the voters in Canada can trample on rights of the minority which are allegedly protected by this particular Charter, because regional majorities are not in fact significant here.

Mr. Chrétien: You will have to have the majority of each part of Canada.

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Mr. Robinson: A regional majority does not affect the Charter of Rights question on whether or not there should be fundamental rights.

Mr. Chrétien: I just say that in terms of security. The point you are trying to make is we should have a Charter of Rights that can never be amended and I do not think . . .

Mr. Robinson: No, no. I am saying no referendum on a Charter of Rights. Do it through the amending formula.

Mr. Chrétien: But we say that you have to go through the amending formula first.

Mr. Robinson: That is as far as you should go on a Charter of Rights, if we are going to be serious about protecting minority rights in this country.

—–o0o—–

November 18, 1980: David Crombie & Walter Tarnopolsky (President, Canadian Civil Liberties Association), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 7 (click HERE), p. 17

Mr. Crombie: […] If you could also turn to Section 12, that deals with the matter of cruel and unusual punishment:

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

What impact would that section in your view have on the debate concerning capital punishment in this country? So Section 7 and Section 12 if you would not mind.

The Joint Chairman (Mr. Joyal): Professor Tarnopolsky.

Professor Tarnopolsky: Well, certainly the Supreme Court of Canada, in the Miller and Cockriell case, held that under the present Canadian Bill of Rights the death penalty was not cruel and unusual treatment or punishment, and in that case the discussion to a large extent dealt with the substantive issue, although it is true that in a majority judgment Mr. Justice

[Page 18]

Ritchie did make a great deal of the fact that it is not really a constitutional bill of rights so we do not know whether their view would be transformed.

However, I think one of the things that one has to say with respect to this clause is that it is a fairly commonly used clause. It is in the International Covenant on Civil and Political Rights in slightly different form. It goes back, of course, to the English Bill of Rights and the Americans picked it up. So there is a great deal of jurisprudence on it and certainly in the United States, to our disappointment, may I say-the Canadian Civil Liberties Association is opposed to the death penalty and I think we should make that clear-nevertheless, the jurisprudence does not indicate that all death penalties in all cases are in contravention of this clause. We would certainly argue that that is so but thus far there has not been a majority on either the American or Canadian Supreme Court who have agreed with that position as far as we are concerned.

The Joint Chairman (Mr. Joyal): One more question.

Mr. Crombie: Well, I would like the answer on Section 7, but I am not sure I clearly understood that. Are you saying that the jurisprudence so far would indicate that Section 12, the cruel and unusual punishment, would argue against the adoption of the death penalty?

Professor Tarnopolsky: Well, Mr. Chairman, this would be our position in the Canadian Civil Liberties Association but one has to admit that in the United States the American Supreme Court has not held all forms of the death penalty in all circumstances to be contravention of the cruel and unusual treatment or punishment clause, and our court has come to the same conclusion although that precedent is somewhat clouded by the fact that Mr. Justice Ritchie based a great proportion of his judgment on the constitutional position and the intention of the bill of rights rather than on the substantive issue.

—–o0o—–

November 20, 1980: Jill Porter (Member of the Executive, National Action Committee on the Status of Women) & Lynn McDonald (President, National Action Committee on the Status of Women), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 9 (click HERE), p. 57

Ms. J. Porter (Member of the Executive, National Action Committee on the Status of Women): Women could be worse off if the proposed charter of rights and freedoms is entrenched in Canada’s constitution. Certainly the present wording will do nothing to protect women from discriminatory legislation, nor relieve inequities that have accumulated in judicial decisions.

Differences between the life patterns of women and men have not been considered by the drafters of the proposed charter. We ask you now to look at the new charter in a different way, from the perspective of over half the population of Canada, to see its deficiencies and to consider amendments to affirm and protect the fundamental rights of equality of women with men.

The National Action Committee on the Status of Women is a voluntary organization working to improve the status of

[Page 57]

women in Canada. NAC is an umbrella for more than 150 nongovernmental organizations across the country, some regional, others Canada-wide. It promotes reform in laws and public policies, informs the public about women’s concerns, and fosters co-operation among women’s organizations.

NAC held a public forum on the constitution in Toronto on October 18, 1980, the recommendations from which were considered by the executive and form the basis of this brief. Notably, it was agreed that we support the entrenchment of a charter of rights and freedoms in principle. However, Part I of the constitution act, 1980, would be acceptable only if amendments are made to Sections 1. 15(1) and (2), Section 24 and Section 29(2), and a new section on the supreme court.

NAC has already informed the Minister of Justice of its opposition to moving divorce from federal to provincial jurisdiction. Also in this brief we do not address the division of powers which has wide application, especially in the area of social services. Women have encountered difficulty by interminable referrals back and forth because of federal-provincial sharing of responsibility for financing and administration.

Once again, we are very concerned about this situation but will not be addressing it today.

Ms. L. McDonald: The opening section under guarantee of rights and freedoms falls short of the statement of principle we would expect. imprecise wording in the limitations clause could open the way to a variety of interpretations of permitted exceptions. Indeed, the potential for driving a truck through the clause led our participants at the conference to dub it the “Mack truck clause”.

Failure to clarify the guaranteed rights and freedoms by removing the limiting clause would render useless subsequent sections. Therefore, NAC proposes that the general limiting clause be deleted.

If there have to be restrictions on rights and freedoms in time of war these should be specified as well as those rights and freedoms not to be abridged under any circumstances. NAC recommends that the rights and freedoms not to be abridged under any circumstances should include at least the right not to be subjected to any cruel and unusual treatment or punishment and the human right to equality in the law.

David Crombie, Doris Anderson (President, Canadian Advisory Council on the Status of Women), & Nicole Duplé (Professor, Laval University), p. 144

Mr. Crombie: Let me be amongst those who welcome the brief and the outstanding presentation of the delegation. I wonder if I might direct your attention to Section 7 and Section 12 of the resolution before the Committee. Section 7 dealing as you are aware with the right to life, liberty and security of the person,

[Page 145]

etc. Section 12 dealing with everyone having the right not to be subjected to any cruel or unusual treatment or punishment. The question is a twofold one:

Do you see anything in either of those two sections which would affect the current debate, first of all over the question of abortion, and secondly, over the question of capital punishment?

Mrs. Anderson: Well, I am afraid that we did not address that. Our concern when we drew up our brief was to address once and for all on this really historical occasion, equality for women and entrenchment of equality in a Charter of Rights. This is what we concentrated on in our brief and this is what the Council discussed and passed last week. So I am afraid I cannot really answer those questions.

Mr. Crombie: Particularly when you saw fit, which I think is not unreasonable, to change Section 1 by cutting out the qualification “subject to” and the words following that, there was no consideration of its effect on either abortion or capital punishment; is that right?

Mrs. Anderson: No.

Mr. Crombie: It might be of interest to you to know that both the Civil Liberties Association and the Human Rights Commissioner had some thoughts on that and you may want to consult those.

Mrs. Anderson: I think Professor Duplé has some further thoughts on that.

Mr. Crombie: Thank you.

Professor Duplé: Yes, with respect to this amendment, that wording in Section 12 is identical to that contained in the Canadian Bill of Rights.

The Canadian Bill of Rights also guarantees to everyone the right not to be subject to any cruel and unusual treatment or punishment. However the Supreme Court has stated that capital punishment is perhaps a cruel treatment, but it is not unusual, since it exists from time immemorial.

And so the Canadian Bill of Rights did not prevent the application of capital punishment. when of course it was prescribed within the law.

Therefore, I must presume that the inclusion of such a guarantee, an identical one in the Charter, would not prevent the application of capital punishment, obviously.

Now the Council has not taken any position as to capital punishment itself, so we cannot comment on that point.

Also, you must have noticed that we propose to replace the various terms used at the beginning of each article by replacing it with the word “person” rather than using the terms “anyone”. or “all”. We make no attempt to solve scientific problems which have not yet been solved, since as determining if a foetus is a person “or not, or when it does become a person, we refer the solution to that problem to more competent hands.

—–o0o—–

December 2, 1980: Rose Charlie (Western Vice-President, Indian Rights for Indian Women), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 17 (click HERE), p. 85

Ms. Rose Charlie: […] Section 12 guarantees everyone the right not to be subjected to unusual treatment. Obviously, this provision is meant to apply to those who are accused or convicted of legal offences. But we submit that Indian women who marry non-Indian men have long been subjected to treatment which is not only unusual but also cruel.

Jake Epp & Nellie Carlson (Board Member, Indian Rights for Indian Women), p. 91

Mr. Epp: On behalf of my colleagues, I would like to thank the Indian Rights for Indian Women who appeared today at short notice. I am pleased that you were able to make the accommodation and to present to us the case that you have made so well today.

The very fact of the publicity which surrounds Indian Rights for Indian Women gives testimony to the fact that, as I believe, the time has come to change Section 12(1)(b). I know your position has been that for some time. So often when discrimination exists in an Act of Parliament, as it does in the Indian Act in Section 12(1)(b), unfortunately it takes a lot of time to either get enough public support so that the weight of public pressure forces the change, or that governments see the validity of changing the Act as you have asked to do.

You have referred to Section 12(1)(b), and throughout your brief I found it very interesting, for instance, at page 3, the manner in which you have interpreted Section 12(1)(b).

For members of the Committee I will only read Section 12(1)(b) and not the reference to Section 11, which is also referred to in that section of the Indian Act. Section 12(1)(b) of the Indian Act reads:

The following persons are not entitled to be registered

That is to say registered as treaty Indians,

namely

and then 12(1)(b)

a woman who married a person who is not an Indian, unless that woman is subsequently the wife or widow of a person described in Section 11.

I will not read Section 11. It is rather lengthy. We know the purport of Section 12(1)(b) and what it does. You mentioned at page 3 of Section 4—and I quote your brief:

[Page 92]

But we submit that Indian women who marry non Indian men have long been subjected to treatment which is not only unusual, but also cruel.

I say that is a new approach to that section of the proposed resolution, but one which I think makes your point very well, What I want to ask you is this: as you know, there was a commitment with the former government that we would present to the House of Commons an amendment to Section 12(1)(b) of the Indian Act before the end of the year, namely the end of 1979. As you are aware of the events of that year, I do not have to go into them, but that opportunity has now gone.

I am asking you whether it is your view that before we look at a charter of rights that as a sign of good will, that the present government should amend Section 12(1)(b) before we look at the constitutional amendments before us.

Mrs. Nellie Carlson (Board Member, Indian Rights for Indian Women): We hope that members of Parliament in their wisdom would look at that Section 12(1)(b), that it is cruel, that in Canada, I am sitting here considering myself as an Indian woman but that Section 12(1)(b) affected me that I am declared non-Indian. So, I am a non-Indian facing you by your law, by your present law. This is what it is.

When is the present government or any other government going to ever change that law that affects Indian women who are declared non-Indians and their children too are non-Indians, yet they are Indians within the Canadian society. They look like Indians but they are not considered as Indians by law.

Mr. Epp: Do you have a commitment from this government and specifically the Minister now responsible for the Indian Act that amendments to Section 12(1)(b) along the lines you have requested will be initiated before the end of this calendar year or next?

Mrs. Carlson: No, there was no commitment made yet by the present government. As a matter of fact, last night we saw Mr. John Munro. The other night he very conveniently ran away from us. I think he knew we would kind of mention something about Section 12(1)(b).

Mr. Epp: So, you have received no commitment from the present Minister?

Mrs. Carlson: No. ln fact, he has not answered to our response that we would like to meet with him to talk with him on that. We met with him May 23 but as yet he has not responded, whether he would meet with Indian Rights for Indian Women again.

Mr. Epp: So, you have been in contact with him on May 23 of this year, we are now at December 2 and you have not had response?

Mrs. Carlson: No response.

Mr. Epp: What plan of action do you have other than before this Committee, which is obviously another plan, to make your case known and that discrimination removed.

Mrs. Carlson: Well, the Sandra Lovelace case is on now in the United Nations. We are fully supporting her.

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Mr. Epp: If I understand the case of Sandra Lovelace, that she has been able to put it before the United Nations. Is this the first time that Canada as a nation has been before the United Nations on a case of discrimination of human rights?

Mrs. Carlson: Yes; towards the Indian women, yes, I think it is the first time, yes.

Mr. Epp: I understand that the Sandra Lovelace case is one whereby it has now been seized, is I think the term they use has been seized by the United Nations and that it will be heard by the United Nations along the lines of discrimination, is that correct?

Mrs. Carlson: Yes.

Mr. Epp: Could you explain to the Committee, I realize not only do Indian women lose their rights, a case that at least members on this side and from my party feel that amendments should be made to the Indian Act immediately, could you explain what happens to the children. Do they ever have the ability or the opportunity to regain their rights?

Mrs. Carlson: No. Even men who have been affected, taking themselves off the band list will never get back on the band list; especially men, but a woman who marries another band member can regain back her status, Indian status. There was a complaint made to me this week where an Indian woman in Alberta was married to an Inuit. She could not receive assistance. She is now living on the reserve because they are separated, O’Chiese reserve in Alberta. She is not entitled to live on that reserve because she is now a non-Indian and yet she is married to an Inuit. She is separated. This is just a complaint I got last week. She is not entitled to any assistance from the Department of Indian Affairs and they told her to go to the provincial government. This is why we mentioned something like the Indian Act is cruel. They are applying that law on her yet she is an Indian woman with four children who is married to an Inuit. You had an Inuit person here this morning, you had just said that, whether you recognized her as an Indian or an aboriginal person to this country, I do not know. But we Indian people or Inuit people all look alike and we have what you call a special right that you had made, your forefathers had made, the legitimate agreement on Indian peoples. Therefore, you turn around before you made that legitimate agreement in 1817 called treaties, you turned around and came up with a nice law in 1869 which states an Indian woman who marries a non-Indian is declared a non-Indian and is no longer a member to that band.

Mr. Epp: I thank you for that answer to my question and especially the reference you make to an Indian woman married to an Inuit. If I recall the testimony of the Inuit Tapirisat of Canada today, they regarded themselves interchangeably the word “Indian” for “aboriginal” and that under the Indian Act, they should not have lose their entitlement, according to that interpretation. It is my hope that as we move down the constitutional road, so to speak, that as a sign of goodwill that we are in fact looking at the rights and freedom of individuals, Canadians, thar as a sign of goodwill that Section 12(1)(b) should be amended immediately. But one of the problems that has occurred in the past with the amendment of the proposed amendment of Section 12(1)(b) has been the understanding by

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governments generally that they want to move in tandem or co-operation with the Indian people and specifically the Indian leadership and the National Indian Brotherhood is one body of that Indian leadership.

Have you now received agreement from the National Indian Brotherhood leadership that in fact amendments to Section 12(1)(b) should be made and that you have that backing from them.

Mrs. Carlson: Not that I know of, but we have been asking to meet with the new elected President of NIB.

Mr. Epp: Thank you for answering my questions and I hope the change you ask will come soon.

—–o0o—–

December 8, 1980: Senator Lucier & David Cruickshank (Vice President, Canadian Council on Children and Youth), & Andrew Cohen (Executive Director, Canadian Council on Children and Youth), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 21 (click HERE), p. 46

Senator Lucier: Thank you. My other question, Mr. Chairman, is people have very different ideas of the right and wrong way to raise children and society itself dictates, and in different areas of the country even, I am from the North and I know that people in the North very often have a way of raising their children that if the same treatment was given in some parts of the south it would be considered cruel and unusual punishment, what the child in the north is given to do, but up there it is just a very normal thing and it is a normal way of life for some of those children.

I am just wondering how would you practically define the rights that I am thinking of that it would seem to me you are suggesting, that a child has, and I would like to see protected. I am not suggesting that it should not be, I would like to see

[Page 47]

these rights protected, How would you define them, to begin with, and, secondly, could they really be practically protected? Could such a law be enforced? Could it really be done?

Professor Cruickshank: Again we go back to our point that we are not suggesting a distinct and separate bill of rights for children. However, I think the point to which you may be addressing yourself is equality before the law and the various interpretations that might have from region to region, I think that if, as legislatures and as Parliament, the legislatures are careful not to get too specific and detailed in their laws, in this field it has been my experience that a good deal of discretion has to be left to administrators and judges to practically work out the problems of the regions.

So it would be unwise to get into lengthy and detailed regimes for handling child abuse cases, it seems to me.

Senator Lucier: But you in your brief do state, I believe, something to the effect that welfare agencies—who is going to protect the child against a welfare agency that moves the child from one place to another? I agree with what you are saying in your brief, that child should be protected against that type of thing. What I am saying is we have to find a practical way of doing it. I do not know one and I am asking if there are ways of doing it.

Mr. Cohen: One of the problems of the current situation is that because children are defined as kind of chattels of their parents or of society the rules for how they are treated really do not have anything to do with what should be available for children, but have to do with what will happen to people who do not ‘do certain things to children.

In other words, children do not have a right to education as we would define rights for other people. Parents have an obligation to send their children to school from a certain time in the morning until a certain time in the evening. If we were talking about adult rights in regard to education, there would be some definition, some positive minimum standard of what that education was. Surely my right to the minimum wage, for example, or my right to be paid a certain amount of money, comes with the definition of what that is, whereas in the case of children, as I say, what is defined as obligations that parents have or society has in the place of parents to do certain things to children.

One of the ways that I think a solution to your problem can be found is if we begin to examine all of those areas in which we hopefully will begin to define children as having rights and set some positive, minimum standards so that there will be something which people can aim towards the achievement of. When there are no standards, as is currently the case, there is not any way to decide; so it is only in the flagrant breach of conduct by either a parent or someone acting in the place of a parent, a child welfare agency or some other agency, that any action can be taken.

[Page 48]

What we do not have, for example, when we talk about what shall happen to the child in care, are minimum standards for what minimum care is so we have a situation where parents who would like to adopt a child are not quite capable of meeting particular standards that must be met in order to adopt a child, so they are not allowed to adopt a child and instead the child is in a foster home which does not come anywhere near meeting those standards, We do not have any positive, minimum standards for what care should be for children or what education should be for children. What I am suggesting in a round-about answer to your question is that until we do it will be very difficult to find the answer to your question by setting rules and saying. how are we going to go about sanctioning people who fail to meet the standards, because there are not any standards.

Senator Lucier: I agree with what you are saying, Mr. Cohen.

—–o0o—–

December 18, 1980: Brief from the United Church of Canada [Appendix CCC-7] in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 29 (click HERE), p. A:17

(iii) Offenders of the law and the mentally disturbed are still persons. Is it enough to write into law that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment”? (Sec. 12) Does not this section need some strengthening by mentioning the right to normal levels of health care, exercise and sanitation; the right to communicate with family; and the right of access to legal counsel and to members of Parliament or provincial legislatures?

—–o0o—–

January 21, 1981: Svend Robinson, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 42 (click HERE), p. 7

Mr. Robinson: With respect to Clause 12, Mr. Chairman we would change the words “cruel and unusual” because of the interpretation of those words which could lead to the unfortunate conclusion

[Page 8]

that punishment, even though cruel and inhuman and degrading, could not be struck down mainly because it was ongoing or it was not unusual in Canadian society. We will be proposing that those words be changed and also that the words of the Covenant be substituted, that is to say, “cruel, inhuman or degrading treatment or punishment”.

—–o0o—–

January 28, 1981: Svend Robinson, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 47 (click HERE), p. 7

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.

Svend Robinson, Jake Epp, E.G. Ewaschuk (Q.C., Director, Criminal Law Amendments Section, Department of Justice), Jean Chrétien, John Fraser, & Jim Hawkes, p. 73

Mr. Robinson: […] 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 degrading treatment or punishment.

[Page 74]

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.

[Page 76]

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: Would 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.

[Page 77]

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

[Page 78]

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

[Page 79]

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.

[Page 80]

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.

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March 11, 1981, Debate in the House of Commons (click HERE), p. 8133

Mike Landers: […] Finally, respecting legal rights, the charter will include the right to life, liberty, and security; the right to equality before the law; protection against unlawful search or seizure, detention and imprisonment; protection against denial of counsel, undue delay of trial, and cruel or unusual treatment or punishment; and the right to the assistance of an interpreter.

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March 18, 1981, Debate in the House of Commons (click HERE), p. 8383

Lorne McCuish: Not only property rights are omitted from the Constitution. By omission we will also lose the ancient, democratic right of trial before a court that is independent from government interference. Even the infamous War Measures Act is incorporated in the new Constitution. Under that provision, the government can send anyone to prison for mere political agitation. One need not break the law; if one even apprehends insurrection, the government can act.

Even if a person is accused of an unproven crime, the right to a quick and lawful trial is no longer guaranteed. Habeas corpus, the ancient guarantee of trial, is gone and is replaced by Section 111(b). The government may now decide what is a “reasonable” time to bring about a trial.

Nor can one count on being humanely treated in prison. The term “cruel and unusual treatment” contained in Section 12 is very ambiguous. A daily beating is not considered “cruel and unusual” in many countries.

The loss of those vitally important rights that have been enjoyed in this democracy will be disastrous for all Canadians. However, western Canadians will suffer much worse results. Western Canada will become the colony of central Canada. The amending formula gives Ontario and Quebec a permanent veto over the wishes of the rest of Canada. I suppose, Mr. Speaker, that permanent agitation between the west and the east will prove to be the most destructive element of the Prime Minister’s resolution.

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April 2, 1981, Debate in the House of Commons (click HERE), p. 8903

Mr. Hal Herbert (Vaudreuil): […] First, may I outline why I asked for these documents and why I believe that some documents must exist somewhere in the Department of Justice. It is true that when we are dealing with variations in the application of justice in the provinces we do have certain acts and bills in which regional variations are recorded. I will cite one or two examples. The first one concerns Section 150 of the Prisons and Reformatories Act. This is a federal act. Where a person under 22 has been convicted in British Columbia of an offence punishable by imprisonment for at least three months, that person may be sentenced to imprisonment for a term not less than three months; but he can be imprisoned for a period up to two years minus one day. Once sentenced under these circumstances, instead of going to jail the individuals are sent to certain correctional institutions.

In a proclamation under the Juvenile Delinquents Act, to give another example, a “child” means in the province of Alberta a girl under the age of 18 and a boy under the age of 16. Thus, there are provisions for treating people differently in different provinces. These variations have been ruled upon as not being discriminatory. One can then ask if the constitutional proposal, when adopted as the Constitution of our land, will have any effect on these

[Page 8904]

laws. In the case of family law, many women have expressed strenuous objection to a proposed transfer which would see the federal government passing jurisdictional responsibility to the provinces. The federal government has indicated its willingness to hand over these powers, and at least the two provinces of Quebec and Ontario have indicated their desire to take over this responsibility.

As the law applies to divorce, this could create a wide variation in treatment from province to province. Even today, with only the one federal law, there is room for a great deal of variation. It is not clear just how much variation there has been because no attempt has been made to quantify cases on a provincial basis.

Although our judges are guided by a doctrine of precedents, consistency is generally maintained only within a given jurisdiction. No province is bound by the case law of another province.

The difference in the manner in which a province proceeds in certain cases can accentuate the difference in treatment between provinces of what are essentially similar cases. The interpretation of the Divorce Act is an example. First, there has to be a case in order to be able to proceed. The making of a case often requires the co-operation and assistance of provincial law enforcement authorities. The degree of willingness of the provincial police forces to allocate personnel will, therefore, be a factor in the ability of a person to establish a reasonable case in court.

At the present time discussions are continuing in an effort to regulate some disagreement in the various provinces which use the Royal Canadian Mounted Police as their police force. At least in those provinces, there is one police force which, presumably, acts in a reasonably consistent fashion. Of course, each of the two largest provinces of Ontario and Quebec, which contain two-thirds of the population of this country, has its own provincial police force. Each of those two police forces is under the control of the provincial authority in those respective provinces.

We must not forget that expenditure of money is almost always necessary in order to proceed by legal process. Once again, the willingness or unwillingness of the provincial authorities to allocate funds at the political level has a big influence on the ratio of successful cases, certainly for poorer persons. Apparently the differing attitudes of the provincial governments toward their responsibility for law enforcement will establish a variety of standards of enforcement, prosecution and sentencing from coast to coast in Canada.

Let me be clear. I am not arguing against variations of provincial treatment. Likewise, I am not arguing for regional variations. I am only pointing out this afternoon that they do exist, are not tabulated-at least according to the response I got to my motion-and most surely should be considered in the formulation of federal legislation.

This week, for example, proposed changes to the Narcotic Control Act have been reported in the press. Apparently introduction of an amending bill was delayed until after the March 19 Ontario provincial election because of fears the Conservative government might turn it into a campaign issue. The only strong opposition to reduction of penalties has come from the Ontario government.

Under the Narcotic Control Act a person can get a maximum seven-year sentence if possession is treated as an indictable offence. Most of the 27,000 individuals convicted of possession in 1979 were given absolute or conditional discharges or light fines. Jail sentences are still imposed occasionally. Note that in the case of marijuana, the intention will be to limit the penalty for possession.

The federal government recognizes its responsibilities and its powers to ensure that the punishment for a transgression can be limited. Whether one agrees or disagrees with the subject matter and its handling, there is an inherent feature of equalization in this measure in that it would establish a far more moderate maximum penalty. The argument cannot, however, be applied to the minimum penalty with the same assurance of equality of treatment.

If I can speak briefly on the abortion issue as an example of inequality of application of federal legislation, it is abundantly apparent that in the province of Quebec the attitude of the Quebec government towards abortion on demand can be cited as very liberal, many will say far too liberal.

One can argue that it is a problem caused by the refusal of hospitals to establish abortion committees. However, that does not, or at least theoretically should not, give provincial law enforcement authorities the permission or the right to shut their eyes to what many people believe to be widespread illegal activity.

Let me reiterate that the raising of this particular issue is not an attempt by me to argue in this debate the pros and cons of the abortion issue, but simply to point out that one piece of federal legislation is viewed and treated in a completely different fashion in two neighbouring provinces. Such variation in treatment was never envisaged in the original legislation.

It is also appropriate to cite as an example today the decision of the dissenting provinces to proceed first in the Manitoba court. This had nothing whatever to do with its central location. It was, however, believed to be the court most likely to produce a favourable decision for the provinces that were fighting the constitutional proposal.

Then the dissenting provinces chose to proceed in Newfoundland and achieved a result which they would readily admit, I am sure, might not apply in the other provincial courts. Once again, what is accented is regional disparity in the administration of justice. I should reiterate, and I think it is important to keep saying this, that I am not arguing for or against such regional disparity. I am only asking in this motion that these differences, which I am trying to illustrate do exist, should be quantified.

A provincial prosecutor has certain discretion to decide whether to charge, at what level to charge and, in the event of conviction, to suggest to the judge conditional release, a fine or

[Page 8905]

imprisonment. Without identifying cases, which I believe would be an abuse of my privilege to speak freely in this House, the requested incarceration, in more than one example of what some refer to as a political crime, has been lenient to the point of being questionable. There is at least the suggestion of political manipulation.

Law reports are devoted to sentencing and judges meet to discuss these reports. In many cases, the judiciary may already find itself limited because of what has transpired in the decision on how and where to prosecute.

In England, a study has been completed on discretion in prosecution. I have been told that the Law Reform Commission is conducting a study. Possibly it deals with the problem under discussion. However, I find it hard to believe that the officials in the Ministry of Justice have not at any time discussed, studied or written any communication dealing with a comparison of the application by the various provincial courts of federal laws.

[…]

Mr. Ron Irwin (Parliamentary Secretary to Minister of Justice and Minister of State for Social Development): […] I think the hon. member does understand, but I would remind him, that part of the problem goes directly to the British North America Act and the division of powers. For instance, under Section 91(27) the federal government is responsible for criminal law. This reads:

The criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters.

That jurisdiction belongs to the federal government

Penitentiaries, dealt with in the next part, fall within the scope and jurisdiction of the federal government. It states:

The establishment, maintenance and management of penitentiaries.

On the other hand, the provinces have the administration of justice under Section 92(14), which states:

The administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts.

As far as incarceration is concerned, under Section 92(6) the province is responsible for:

The Establishment, Maintenance and Management of Public and Reformatory Prisons in and for the Province.

What it means, and I do not know how this was developed historically, is for terms of imprisonment over two years the federal government is responsible, and for terms of imprisonment under two years the province is responsible.

While the historical documentation surrounding the development of the division of powers at the time of confederation is not clear, there is a general consensus to the effect that the fundamental distinction of constitutional jurisdiction in the field of criminal justice was aimed at developing, on the one hand, a consistent and nationally applicable set of laws and, on the other hand, allowing for the application of those laws in a way sensitive to the variation of conditions in the provinces and regions.

Besides this constitutional distinction there is a distinction periodically in substance and a distinction periodically in procedure. On substance, if I might through you, Mr. Speaker, give an example to the hon. member, in the criminal law on obscenity we refer to what is called the “community standard”. Community standards vary from community to community across this country, and if not from community to community, certainly from region to region. Let me give an example in respect of procedure. The use of the grand jury varies from province to province.

As much as we want uniformity, for example, in sentencing, there is a wide discretion on the individual judge, and I suggest rightly so. What happens is that in most sections there is a maximum term in the Criminal Code and the sentencing judge has a discretion to look at the nature of the offence, whether there is a chance of rehabilitation and what should be the deterrent, and then decide whether there should be a conditional discharge, an absolute discharge, a fine, incarceration or several other different types of sentences now under consideration and being actively pursued.

There are certain crimes which are more prevalent in one area than another. This is evident from the month-end reviews by provincial court judges in Ontario. Provincial court judges will indicate that in a particular area there have been so many thefts, so many impaired drivers, and the number varies from region to region. A judge may want to have a specific deterrent in a particular area, so there should be some flexibility.

[Page 8906]

Some jurisdictions in the United States have tried this. They have imposed with some considerable success guidelines which restrict the police, the prosecution, the nature of the sentence and the nature of the correctional institutions. While there may be a great deal to be said about the need to subject the exercise of discretion to such guidelines—and I understand considerable attention is being paid to this in Canada now and has been in recent months and years—I am not certain we would wish to endorse without restraint this type of rigidity in criminal justice in Canada. This has not been the traditional stance of governments or of Canadians since 1867. I think we must respect growth in criminal justice because it was built on true trial and error.

On the other hand, if you look at the new Constitution and the consistency and uniformity of rights that will be applied, I think you will see that many of the things the hon. member for Vaudreuil has suggested will be incorporated. For instance, if this Constitution is passed there will be certain uniformity because no province or federal government can on its own take away certain basic rights. We are talking about legal rights specifically and most of them are in the proposed sections starting with Section 7.

I will briefly give some examples. In Section 7 there is a right to life, liberty and security of a person, and this right is to be applied uniformly across the country. By Section 8 there is a right of security against unreasonable search and seizure, and this is also applied uniformly across the country. Under Section 9 the legislatures are prohibited from passing laws that would provide for arbitrary detention or imprisonment. Under Section 10, on arrest or detention there is a right to be informed promptly, given the reason, the right to retain and instruct counsel, the right to be informed of that right, and the right of habeas corpus. Section 11 involves the uniform right across the country to be informed properly of an offence, the right not to self-incriminate and the right to be presumed innocent. Section 12 deals with cruel and unusual treatment or punishment, about which the hon. member is talking. Section 13 deals with self-incrimination and the protection of witnesses. Section 14 provides a uniform right across the country to assistance through interpreters. Section 15 basically is a leveller; it gives uniform rights across the country. It says in essence there cannot be a provincial or federal law that will discriminate because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disabilities.

Later on there is a right to have a jury. That is not to suggest that there is a provincial right or a federal right to a jury; rather, there is a Canadian right to a jury.

Let me take this opportunity to remind some of the opposition members that these particular rights are included in this proposed Constitution. Maybe they have not read it and maybe they are not aware of them, but, as the saying goes, if a lack of knowledge will not hurt you, the Progressive Conservative Party is practically invulnerable. Members of that party say we should wait for the decision of the Manitoba Court of Appeal and the Newfoundland Court of Appeal; wait for this premier and that premier. They are waiting for their ship to come in. They have waited so long I suggest their pier has collapsed.

What have we heard from them? We heard one hon. member raise a point of order on the tabling of documents, another hon. member on the use of the initials “MP”, another hon. member on misleading answers, another hon. member on unparliamentary remarks, another hon. member—

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April 21, 1981, Debate in the House of Commons (click HERE), p. 9363

Mr. Gordon Taylor: […] Section 12 says that everyone has the right not to be subjected to any cruel or unusual treatment or punishment—capital punishment—with a view to the fact that the court would decide that executing a man or woman who deliberately plans and takes the life of another human being would be cruel and unusual punishment. Well, here again, with these kinds of words they are trying to fool those who believe that we need capital punishment in this country and, that it is the basis of all our laws. We punish a child for doing something wrong. Then we punish him more severely for doing something more wrong. Then if he does the ultimate crime, he should have the ultimate punishment, death, if he deliberately plans and takes the life of another human being. Many problems will arise in this country through that.

As one man said to me, in Standard, “I wonder how those who are opposing capital punishment would feel if their little girl were tortured, deliberately abused, mutilated and killed following a sex act, a little girl who could not help herself.” Do we say that man has a right to live? That man has earned death and he should be executed. But in our charter of rights we are saying, “Oh, no. That would be cruel and unusual.”

—–o0o—–

April 22, 1981, Debate in the House of Commons (click HERE), p. 9417

Mr. Dubois: […] Now, with this Constitution and its patriation, what are the classes of rights and liberties that ought to be guaranteed? As mentioned in the resolution I think Mr. Speaker that some rights and freedoms must be protected by the federal and provincial governments. To name but a few: fundamental freedoms, democratic rights, mobility rights, minority language educational rights, judicial guarantee, rights to non-discrimination and another element that the Canadian government suggests is very important and I agree with that, is the right to use official languages, thus giving a status to French and English as well as equal rights and privileges as to their use in parliamentary institutions and within the Canadian government; making sure that the Official Languages Act is institutionalized, that it is enshrined in the Constitution, to me is very important. Some have said in certain cases that we should not have a charter of rights and only patriate the Constitution without an amending formula or even a charter of rights. As the Right Hon. Prime Minister pointed out on March 23 in his speech to the House, opinion polls have been conducted and they show the following results: On August 6, 78 per cent of the respondents stated they wanted Canada to have its own Constitution written and adopted by the Canadian people.

To this other question: “Should the Constitution protect fundamental human rights?”, 91 per cent answered yes. Asked whether they wanted the Constitution to guarantee minority language rights, 81 per cent answered “yes”. As far as the

[Page 9418]

charter of rights is concerned and this is very important, Mr. Speaker, I want to remind you that at the special constitution- al committee hearings, out of 75 witness groups, 54 supported the entrenching of a charter of rights in the Constitution. Mr. Speaker, these figures speak for themselves and if they are not eloquent, I do not know what is. I do not know where one can find as high a percentage of people who support the entrenching of a charter of rights. Mr. Speaker, those are the few questions about the Constitution which I wanted to answer. Those are the ones I wanted to elaborate on.

As far as the text itself is concerned, obviously there were some clauses, some points which have been emphasized strongly. Let us go down the resolution clause by clause or let us consider the whole package of clauses before the House. For example, from clause 1 to 16, the question of fundamental rights, the freedoms of conscience, of faith, of thought, of press and other information media, the freedom to hold peaceful meetings are dealt with. But, Mr. Speaker, who, in this House, could be against such rights? Can one be against freedom of association? It is provided for in the proposed resolution. Can one be against democratic rights as provided in clause 3? Mr. Speaker, can one be against mobility rights in Canada?

Mr. Speaker, can one be against those legal rights under which everyone has the right to life, liberty and security of the person? Can one be against those rights, Mr. Speaker? But those rights are granted in the proposed resolution, Mr. Speak- er! Can one be against those rights and say: Everyone has the right not to be arbitrarily detained or imprisoned? Can one be against those rights, Mr. Speaker, and say: Everyone has the right on arrest or detention to be informed promptly of the reasons therefor?

As a lawyer, as a representative of my riding, when I see that very important provision for Canadians, I wonder who could be against those rights that will be entrenched in the Constitution of Canada. To retain and instruct counsel without delay and to be informed of that right! Can one oppose that? Such guarantees are to be found in the proposed resolution, Mr. Speaker. Has anyone the right to object to the provision under which everyone has the right not to be subjected to any cruel and unusual treatment or punishment? Mr. Speaker, those provisions are to be found in the proposed resolution. […]

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ENDNOTES

[1] This is only a summary of the proposals. We hope to include the draft itself in future reports.

[2] For the draft itself, please see Part 1 of this report. The draft was from July 4, 1980.

Previous Versions of this Report: [Version 1]

Reports, Section 12 [Constitution Act, 1982]

PrimaryDocuments.ca

REPORT: Cruel & Unusual Punishment, Section 12 of the Constitution Act, 1982

SECTION 12

Cruel & Unusual Punishment

The Constitution Act, 1982

Part I. Canadian Charter of Rights and Freedoms

Short Table of Contents

PART 1:

Drafting History of the Charter of Rights and Freedoms Pertaining to Section 12’s Public Meaning

Drafts of the Charter of Rights and Freedoms

Statutes and International Agreements

PART 2:

The Primary Record (Debates, Papers, Committees…) Pertaining to Section 12’s Public Meaning

ENDNOTES

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REPORT: Cruel & Unusual Punishment, Section 12 of the Constitution Act, 1982

SECTION 12

Cruel & Unusual Punishment

The Constitution Act, 1982

Part I. Canadian Charter of Rights and Freedoms

Short Table of Contents

PART 1:

Drafting History of the Charter of Rights and Freedoms Pertaining to Section 12’s Public Meaning

Drafts of the Charter of Rights and Freedoms

Statutes and International Agreements

PART 2:

The Primary Record (Debates, Papers, Committees…) Pertaining to Section 12’s Public Meaning

ENDNOTES

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