Document Information

Date: 2023-07-12 [Updated: 2023-08-09]
By: PrimaryDocuments.ca
Citation: PrimaryDocuments.ca, Section 3, Democratic Rights: Compilation of primary documents to assist in interpreting the public meaning of Section 3 of the Constitution Act, 1982, Second Ed. (August 2023).
Other formats: Click here to view the original document (PDF).
Please Note: The PDF and HTML below will not always align. The PDF serves as a record in time, whereas the HTML will constantly be updated. The PDF will be updated occasionally and all former versions of the report will be available for download when a new version is uploaded. For now, the PDF contains the original version of the report.

SECTION 3

Democratic Rights

Compilation of primary documents to assist in interpreting the public meaning of Section 3 of the Constitution Act, 1982

Second Edition

August, 2023

The Constitution Act, 1982

Part I. Canadian Charter of Rights and Freedoms

Democratic Rights

Democratic rights of citizens

Section 3 Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Short Table of Contents

Part 1: The Drafting History of the Charter of Rights and Freedoms Pertaining to Section 3’s Public Meaning
Part 2: The Primary Record (Debates, Papers, Committees…) Pertaining to Section 3’s Public Meaning
Endnotes

PART 1:

Drafting History of the Charter of Rights and Freedoms Pertaining to Section 3’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)
January 22, 1979: Proposed Charter of Rights & Freedoms, Ontario Draft tabled at the Continuing Committee of Ministers on the Constitution (January 22-24, 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:

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

—————o0o—————

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)

7. Consistent with the principles of free and democratic elections to the House of Commons and to the legislative assemblies, and of universal suffrage for that purpose, every citizen of Canada shall, without unreasonable distinction or limitation, have the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

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

—–o0o—–

January 22, 1979: Proposed Charter of Rights & Freedoms, Ontario Draft tabled at the Continuing Committee of Ministers on the Constitution (January 22-24, 1979)

7. Consistent with the principles of free and democratic elections to the House of Commons and to the legislative assemblies, and of universal suffrage for that purpose, every citizen of Canada shall, without unreasonable distinction or limitation, have the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

(Source: Continuing Committee of Ministers on the Constitution, Proposed Charter of Rights & Freedoms, Ontario Draft, Doc 830-70/042 (Vancouver: 22-24 January, 1979). Click HERE)

—–o0o—–

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)

3. Consistent with the principles of free and democratic elections to the House of Commons and to the legislative assemblies, and of universal suffrage for that purpose, every citizen of Canada shall, without unreasonable distinction or limitation, have the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

(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)

—–o0o—–

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)

3. Consistent with the principles of free and democratic elections to the House of Commons and to the legislative assemblies, and of universal suffrage for that purpose, every citizen of Canada shall, without unreasonable distinction or limitation, have the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

(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)

—–o0o—–

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)

3. Consistent with the principles of free and democratic elections to the House of Commons and to the legislative assemblies, and of universal suffrage for that purpose, every citizen of Canada shall, without unreasonable distinction or limitation, have the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

(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)

—–o0o—–

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)

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

(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)

—–o0o—–

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)

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

(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)

—–o0o—–

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)

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

(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)

—–o0o—–

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

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

(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)

—–o0o—–

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

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

(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)

—–o0o—–

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

3. Every citizen in Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

(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 57 [Final Report] (13 February 1981). Click HERE)

—–o0o—–

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

3. Every citizen in Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

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

—–o0o—–

November 18, 1981: House of Commons Draft

3. Every citizen in Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

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

—–o0o—–

November 24, 1981: House of Commons Draft

3. Every citizen in Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

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

—–o0o—–

November 26, 1981: House of Commons Draft

3. Every citizen in Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

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

—–o0o—–

December 2, 1981: House of Commons Draft & Vote

3. Every citizen in Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

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

—–o0o—–

Statutes and International Agreements

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

10. The principles of free and democratic elections to the House of Commons of Canada and to the legislative assembly of each province, including the principle of universal suffrage for that purpose, are fundamental principles of the Constitution of Canada; more particularly no citizen of Canada shall, because of his or her race, national or ethnic origin, language, colour, religion, or sex, be denied the right to vote in an election of members of the House of Commons of Canada or of the legislative assembly of a province, or be disqualified from membership therein.

(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)

—–o0o—–

PART 2:

The Primary Record (Debates, Papers, Committees…) Pertaining to Section 3’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), pp. 6, 28, 72
February 9, 1971, Constitutional Conference, Working Session No. 3, Statement of Conclusions (click HERE), p. 4
June 14-16, 1971, Constitutional Conference, Victoria Charter (click HERE)
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), p. 3
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. 1
July 8-11, 1980, Meeting of the Continuing Committee of Ministers on the Constitution, The Charter of Rights, Quebec’s Position (click HERE), p. 1
July 9, 1980, Continuing Committee of Ministers on the Constitution, Statement by the Honourable Jean Chretien (click HERE), p. 1
September 8-13, 1980, Federal-Provincial Conference of First Ministers on the Constitution, Summary Record of Proceedings (click HERE), pp. 25, 28, 29
October 6, 1980, Debate in the House of Commons (click HERE), p. 3285
October 8, 1980, Debate in the House of Commons (click HERE), pp. 3400, 3406
October 15, 1980, Debate in the House of Commons (click HERE), p. 3704
October 16, 1980, Debate in the House of Commons (click HERE), p. 3761
October 23, 1980, Debate in the House of Commons (click HERE), pp. 3990, 4007
November 18, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 7 (click HERE), p. 86
November 20, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 9 (click HERE), p. 131
December 9, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 22 (click HERE), p. 21
February 20, 1981, Debate in the House of Commons (click HERE), p. 7520
March 3, 1981, Debate in the House of Commons (click HERE), p. 7843
March 5, 1981, Debate in the House of Commons (click HERE), p. 7931
March 11, 1981, Debate in the House of Commons (click HERE), p. 8132
March 18, 1981, Debate in the House of Commons (click HERE), p. 8386
March 27, 1981, Debate in the House of Commons (click HERE), p. 8693
November 2-5, 1981, Federal-Provincial Conference of First Ministers on the Constitution, Verbatim Transcript [Including Agreement on Constitution] (click HERE), p. 37
November 2-5, 1981, Federal-Provincial Conference of First Ministers on the Constitution, New Brunswick Proposals concerning The Charter of Rights (click HERE), p. 1
November 2-5, 1981, Federal-Provincial Conference of First Ministers on the Constitution, A New Brunswick Proposal to obtain wider support for the Constitutional Resolution (click HERE), p. 1

—————o0o—————

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. 6

This implies that the Constitution must also preserve the federal character of our country. For federalism has been devised for the very purpose of enabling the kind of diversity one finds in Canada to flourish within the bosom of a single and a united country. Federalism also protects the individual citizen from an undue concentration of power in the hands of a single government – a concentration such as to create the danger that individual fulfilment will be subordinated to some kind of monolithic authority. The first objective of Confederation the Government of Canada would propose, then, is:

To establish for Canada a federal system of government based on democratic principles.

How this objective will be realized is to be judged by the character of the institutions of government which are created by the Constitution. The

[Page 7]

[French translation of previous page]

[Page 8]

kind of federalism the governments of Canada favour will be reflected in their proposals as to the institutions of federalism in the central government, the division of the power to govern between the federal and provincial governments, and the role to be assigned to the respective governments in representing the interests and expectations of Canadians in different regions and linguistic communities of our country. The kind of democratic institutions wanted will be reflected in the character of the institutions of government proposed in a revised constitution – both those of the central government and those of the provinces. The democratic values of our society will also be reflected in the kinds of constitutional guarantees which are proposed for ensuring that government will remain an expression of the public will. The mechanics for achieving this end are taken for granted by most of universal suffrage, periodic elections, and annual meetings of legislative bodies, but they should surely be the subject of constitutional guarantees if this objective of the Constitution is to be achieved.

p. 28

In this process of definition, we have proposed setting forth in the Constitution the relationships between the Head of State, the Governor General, the Prime Minister the Privy Council, the Cabinet, and the Houses of Parliament. The conditions and means by which the Governor General, the Prime Minister and the Ministers assume and leave office would be defined for the first time. (Indeed, the very mention m the Constitution of the office of Prime Minister and of the Cabinet would be an innovation, as one may at present look in vain for any constitutional reference to them.) The principles of responsible government — including the requirement that every minister be or become a member of one of the Houses of Parliament, and that a ministry can survive only so long as it enjoys the confidence of the House of Commons – are also spelled out in our constitutional proposals.

At the same time we would maintain those provisions which ensure representative government: the requirement of an annual session of Parliament, of universal suffrage in election of the House of Commons, and of elections at least once every five years. These are essential to the preservation of the democratic rights of all Canadians.

By these means, then, we have maintained and expanded upon the principles of the existing Constitution of the Government of Canada, in order to ensure that it will be democratic both in form and in substance.

We have also examined the existing Constitution to see if the institutions of the central government adequately reflect the equally important principles of federalism. We have given particular attention to the Senate and the Supreme Court: the former because it was originally designed in part to protect regional interests, the latter because it is the final interpreter of the Constitution whose decisions frequently affect both federal and provincial interests. As the Supreme Court will be discussed in a later section, consideration will first be focused on the Senate.

p. 72

22. The House of Commons should be elected by universal suffrage; it should provide representation on the basis of population except as otherwise provided by the Constitution.

—–o0o—–

February 9, 1971: Constitutional Conference, Working Session No. 3, Statement of Conclusions (click HERE), p. 4

4. It was agreed to entrench in the Constitution the following basic political rights:

(a) universal suffrage and free, democratic elections at least every five years;

—–o0o—–

June 14-16, 1971: Constitutional Conference, Victoria Charter (click HERE)

Art. 4. The principles of universal suffrage and free democratic elections to the House of Commons and to the Legislative Assembly of each Province are hereby proclaimed to be fundamental principles of the Constitution.

—–o0o—–

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

Turning to some of the major elements of the Charter, these may conveniently be discussed under the following headings: substantive rights and freedoms, enforcement, limitations, preservation of subsisting rights and distribution of powers.

(1) SUBSTANTIVE RIGHTS AND FREEDOMS

(a) Democratic Rights and Freedoms

Sections 10- 12 of the Bill would enshrine in the Charter basic rights and freedoms with respect to the democratic processes of government in Canadian society.

Section 10 provides for two things. First, it states the fundamental principles upon which the federal and provincial elected legislative bodies are to be constituted-on the basis of free and democratic elections encompassing the principle of universal suffrage. It does not imply that everyone is entitled to vote. It would continue to imply reasonable limitations on the franchise such as the exclusion of convicted persons in prison, non-citizens, members of the judiciary and minors.

Second, section 10 expressly states the grounds upon which it would be prohibited to deny a citizen the right to vote or to be elected to the House of Commons or a provincial legislature or territorial council. The expressed grounds are race, national or ethnic origin, language, colour, religion or sex. Enshrining this provision in the Charter would ensure that never again would it be possible to deprive citizens of the right to vote on the basis of race or national or ethnic origin as was done in the past. “Age” of course is omitted in order that minors may properly be denied the right to vote or be elected, as is “nationality,” so that Canadian citizenship may be required.

The Special Joint Committee Report in 1972 recommended that a provision also be included which would require that there be fair and equitable representation in the House of Commons and in the provincial legislatures. It felt that in particular the urban dwellers were not fairly represented in provincial legislatures. While it recognized that such a provision could invite judicial intervention in determining the electoral maps, the report suggested that this might be avoided by providing for a constitutional norm, e.g., 20 per cent as the permissible variation from the standard size of a constituency. The report also noted that any such provision would have to be reconciled with the guarantee of minimal representation for some provinces in Parliament.

While this proposal has merit, it [is] felt that the complexities involved in devising an acceptable formula would make it very difficult to secure agreement on a provision to be placed in the Charter.

Section 11(1) which limits the duration of a House of Commons or a provincial legislature to a maximum term reflects the provisions now found in section 50 and 85 of the BNA Act.

Section 11(2) would permit a House of Commons or a provincial legislature, in time of real or apprehended war, invasion or insurrection, to extend its duration beyond the specified limit if such extension is not opposed by more than one-third of the members of the legislative body.

This provision is unchanged with respect to the House of Commons which now has this power under section 91(1) of the BNA Act. However, it constitutes a new provision with respect to provincial legislatures.

The justification for this proposal is that as the provincial legislatures within their sphere of interest are as responsible as the House of Commons is within its sphere, they should be on an equal footing in determining when a crisis situation dictates the invoking of this exceptional course of action. If the power is abused, the members of a legislature will be accountable to their electorate in the same manner as would be the members of the House of Commons.

Section 12 provides that there shall be a session of the House of Commons and of each provincial legislature at least once a year. This adopts the existing provisions of sections 20 and 86 of the BNA Act which ensure that the governments of the day remain accountable to their respective [legislative] bodies.

—–o0o—–

February 5-6, 1979, Federal-Provincial Conference of First Ministers on the Constitution, Federal Draft Proposals Discussed by First Ministers[1] (click HERE), p. 3

NEW DRAFT PROPOSALS

[…]

B. Democratic Rights

1. Consistent with principles of universal suffrage and free and democratic elections, right of citizen to vote and qualify for election in House of Commons or legislature without unreasonable distinction or limitation.

—–o0o—–

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. 1

Democratic Rights includes the right to vote in an election of members of the House of Commons or of a legislative assembly and the right to stand for office in either of these institutions. This section of the Charter also limits to five years the time any government may remain in power without “going to the people” and requires that Parliament and provincial legislatures meet at least once in every year.

—–o0o—–

July 8-11, 1980, Meeting of the Continuing Committee of Ministers on the Constitution, The Charter of Rights, Quebec’s Position (click HERE), p. 1

Quebec’s firm and resolute commitment to the protection of citizens’ basic and individual rights is a course that was undertaken several years ago. Clearly, the protection of Quebec citizens provided by the Quebec Charter of Rights and Freedoms, in conjunction with the federal Bill of Rights, is unrivalled in scope by that of few–if any–other provinces Quebeckers unanimously support the fundamental freedoms (such as freedom of religion, of thought, of speech, and of the press) and the basic principles of democracy (such as universal suffrage, elections every four or five years, and annual sittings of Parliament). These rights exist and are respected in Quebec.

Thus the question raised by the federal proposal for a constitutional Charter of Rights is not “Does Quebec intend to protect the rights of its citizens?” but rather “What is the best way to protect the rights of the citizens of Quebec?” The proposal to entrench a broad range of individual rights in the constitution provokes a number of concerns Before supporting such a Charter, Quebec must be convinced that constitutional entrenchment offers the most effective means of protection, that the rights covered in the Charter represent values common to all Canadians, and that their meaning and scope are well defined.

i) Advantages of entrenchment

a. The protection of individuals would, in principle, be enhanced by entrenchment of a Charter of Rights in

[Page 2]

the constitution. Entrenchment would prohibit any body, even a legislature, from violating the principles contained in the Charter

b. It might also be maintained that the courts would accord greater value to an entrenched charter than to a merely legislative one, which, as the expression of the will of a particular legislature, can easily be amended by a conflicting expression of will from the same body. In any case, the courts have so far refused to grant to the present federal Bill of Rights any status clearly above that of other laws.

c. The ceremony of entrenchment would confer on the Charter of Rights a symbolic and inspirational value.

d. Lastly, entrenchment would ensure uniformity of basic and individual rights across Canada.

ii) Disadvantages of entrenchment

a. Entrenchment would limit the legislative jurisdiction of the provinces to an extent determined by the number and variety of rights contained in an entrenched Charter. The results of reform in federal and provincial jurisdictions must be known before the concrete consequences of entrenchment of a Charter of Rights can be adequately assessed. Entrenchment could be disadvantageous if it occurs before agreement on the division of powers between federal and provincial governments.

b. Entrenchment could lead to a “government of judges” and may not constitute the most democratic means of protection of rights.

[Page 3]

The subject of rights and liberties is a vast field, still in a state of constant evolution. Constitutional entrenchment would inevitably complicate and hamper this evolution and would strip elected assemblies of the power to shape it in accordance with democratic principles. This responsibility would pass from the hands of elected representatives into the hands of appointed judges.

This was, in fact, the point made recently by one of the most eminent members of the Canadian judicial system, Mr. Louis-Philippe Pigeon, former judge of the Supreme Court: “I wish to emphasize that, in considering the probable effect of an entrenched Charter of Rights, we must realize that entrenchment would entail handing over to the courts a significant portion of the power to legislate. In my opinion, it would be mistaken to view this as a function comparable to that of interpretation of a federal constitution.”

The Canadian political system is founded on legislative representation and sovereignty. By the transference of legislatures’ powers to the courts, citizens are deprived of their most effective instrument of influence over the evolution of their individual rights. Thus, the fundamental principles of democracy are at stake in the decision on whether or not a Charter of Rights should be entrenched, since we must decide whether it is citizens or judges who will determine the evolution of rights.

The broader the range of rights to be entrenched in the Charter, the Fore serious this latter disadvantage becomes.

For example, the federal draft proposes to entrench the freedom of citizens to move about from one province to another. No one, and least of all Quebec, objects to this freedom as a general principle. But when one considers its meaning, implications, and consequences, a problem

[Page 4]

arises. This freedom might mean that Quebec could, for example, be prevented from controlling entry into the professions, as it does now, on the ground that Quebec regulations were more restrictive than those of other provinces and hence interfered with mobility. Similarly, entrenching the freedom of movement could lead to the standardization of educational systems across Canada, because differences among systems could be interpreted as barriers to mobility.

If the courts did interpret this right in such ways, and Quebec subsequently wanted to propose, for example, to amend the Charter to restore a more normal situation, it would have to set in motion the process of amending the Constitution in which this right had been entrenched. And we know that constitutional change does not come easily in Canada.

Obviously these disadvantages, inflexibility and diminished legislative responsibility, would be much less serious if the Charter entrenched only the most fundamental rights and freedoms, whose meaning and implications are well-known and have been tested in the courts, These rights and freedoms represent values to which all Canadians subscribe, and hence pose fewer difficulties. This is the case for the freedoms mentioned earlier–freedom of religion, freedom of expression, freedom of thought, freedom of the press, and so on–the fundamental principles of democracy. Along with these freedoms come the basic rights in criminal proceedings–the presumption of innocence, the right to a fair trial, the right to counsel, and so forth. The question here, then, is which rights should be incorporated in any charter.

In short, Quebec wants the fundamental rights of citizens to receive the broadest and most effective protection possible, but it questions what the best reams of providing such protection would be. Quebec therefore approaches the issue of the entrenchment of rights with e very open mind, even though it has serious doubts about this method and is weighing

[Page 5]

its advantages and disadvantages. But Quebec will oppose the use of a Charter in a direct attempt to alter its social and cultural priorities, as might happen in the area of language rights.

—–o0o—–

July 9, 1980, Continuing Committee of Ministers on the Constitution, Statement by the Honourable Jean Chretien (click HERE), p. 1

I would like to speak briefly to each of the rights which have been included in a draft of the Charter which I will leave with you following this statement. Also, I wish to put before you my own views as to why it is necessary to entrench these rights rather than leave the protection of each Canadian’s rights to the ordinary legislative process.

In deciding which rights should be included in this Charter we have selected only those which we feel reflect the central values of our society. Each of the rights we have listed is an essential ingredient for the Charter and all are rights which all Canadians should have regardless of where they live in our country.

I understand that there is a fairly wide consensus that Fundamental Freedoms and Democratic Rights should be included in the Charter. These rights may seem self-evident but they should be in the Constitution so that all Canadians can fully understand not only what measure of freedom they possess but also what limitations exist, since no right is absolute.

—–o0o—–

September 8-13, 1980, Federal-Provincial Conference of First Ministers on the Constitution, Summary Record of Proceedings (click HERE), p. 25 

Mr. Davis expressed support for the entrenchment of a Charter of Rights in a new constitution stating that it was his government’s belief that governments and the people must make an explicit commitment to the preservation and enhancement of the liberties of individuals. A Charter should include the following items: a reaffirmation of our commitment to fundamental freedoms and democratic rights, those legal rights which are best served by inclusion in a Charter of Rights, a reaffirmation of the obligation of Parliament and federal institutions to operate in both official languages, guarantees of minority language education throughout Canada where numbers warrant, and of the holding of criminal trials in the official language of the accused.

p. 28

Entrenchment of sections pertaining to Fundamental Freedoms was approved by Ontario, New Brunswick and Newfoundland. All governments were prepared to entrench the sections pertaining to Democratic Rights except Manitoba, which reiterated its difficulty with the basic principle of entrenchment. In response to Manitoba ‘ s position that Democratic Rights are already protected by provincial statute, Mr. Trudeau pointed out that Section 92(1) of the BNA Act empowered legislatures to change their constitution by a majority vote and that this was not sufficient protection.

p. 29

Newfoundland reiterated that it was not prepared at that time to support the entrenchment of anything other than Fundamental Freedoms and Democratic Rights. It suggested that discussion of sections 6 onward be set aside and continued among governments over the next several weeks or months until such time as some sort of consensus could be reached. Newfoundland stressed that certain affirmative action programs were essential for a province’s development and that national goals could not be allowed to extinguish equally laudable regional goals.

—–o0o—–

October 6, 1980, Debate in the House of Commons (click HERE), p. 3285

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

[Page 3285]

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.

—–o0o—–

October 8, 1980, Debate in the House of Commons (click HERE), p. 3400

Mr. McGrath: […] I also recall, vividly and with personal regret, and this is the first time I have had the chance to say this publicly, that day ten years ago when this government, with the approval of this House, imposed the War Measures Act. It is difficult to find adjectives to describe that measure, but certainly you could describe it as a Draconian measure designed at the time it was drafted to protect the national security in time of war or, in the wording of the act, in the case of what the act calls “apprehended insurrection”.

That was not a proud moment for any of us, sir, because, and we did not realize it at the time, that move had the effect of placing the entire country under martial law; placing in suspension the very fundamental freedoms proposed for entrenchment in the constitution by this measure. That involves a question which we will want to get back to when we have a chance in committee.

Proposed section 2 of the bill sets out the charter of rights and freedoms. Who in this House would be against any of these basic human rights and freedoms? We arc all in favour of “freedom of conscience and religion”, “freedom of thought, belief, opinion and expression, including freedom of the press and other media of information”, and we are all in favour of “freedom of assembly and of association” and the right to vote. Good heavens, who would be opposed to that?”

Whether or not the entrenchment of these basic and fundamental rights and freedoms in our constitution, given our parliamentary system and tradition, is the way to go about it, raises a question that keeps bothering me. I have not satisfied myself on that score.

Having said that, that does not put me in second place to anybody who can speak just as strongly for entrenchment, because I believe just as strongly in these basic fundamental rights and freedoms. I believe with all my heart that this country should never permit the imposition of the War Measures Act in time of peace.

It was fascinating to watch the first ministers, the premiers of the country, together with the Prime Minister discuss through the public media Canada’s future. I was touched and deeply moved by the very learned paper presented by Premier Lyon on this question. I must confess I had not given this matter that much thought up to that point in time because I felt entrenchment was so fundamental there was nothing to think about. That argument put forward by Premier Lyon was given equal support by Premier Blakeney of Saskatchewan, representing both spectrums of political thought in this country. I found that very interesting. That is not really the point I wanted to make. It has to be said that we all favour some form of protection of these fundamental rights and freedoms.

p. 3406

Mr. Fleming: […] My third comment on Premier Lyon’s trust in English common law is that any comparison is irrelevant anyway. Britain is a small country, Canada is huge. Britain has one government, we have 11. Theirs is a unitary state, ours is a federation. They have a strong family structure, a high tolerance of non-conformity, and a population that is still fairly homogenous. We have two official languages, and one-third of our people represent almost all the nations on the globe.

Mr. Lyon contends our system has worked better than that of the United States, where the existing constitution guarantees human rights. I agree that our record on rights is relatively good. But we disenfranchised Asians at the turn of the century in British Columbia, a decision upheld by the Supreme Court, which shows that Canadian citizenship does not guarantee the right to vote. We have denied Chinese in British Columbia the right to work in certain jobs. But it is true we have not systematically oppressed any minority as the southern United States have persecuted blacks. Nor have we had the problem those states have had.

—–o0o—–

October 15, 1980, Debate in the House of Commons (click HERE), p. 3704

Hon. Yvon Pinard: […] The second category of rights we want to have entrenched in the constitution deals with the democratic rights that we are all aware of but that are seldom mentioned although they are fundamental. I am talking of the sacred right of citizens to vote in Canada and to be elected. Anybody in Canada who meets the normal few criteria set in a democratic society has the right to be a candidate, to become the elected member of his riding and to be its representative in the Parliament of Canada. It is one of the great advantages of our system and there is absolutely nothing wrong, indeed it is desirable that this kind of right be well entrenched in the Canadian constitution.

—–o0o—–

October 16, 1980, Debate in the House of Commons (click HERE), p. 3761

Miss Aideen Nicholson: […] Every one of us or our ancestors emigrated to this country and together we have created a unique society, a society benefiting from the sharing of our many cultures, traditions and backgrounds. It is fundamental to the growth and success of this country that we live together in a spirit of mutual respect, understanding and equal opportunity for everyone, no matter what our race or background. That is why I consider the enshrining of the charter of human rights in the constitution essential.

Some have argued that fundamental rights are well protected by our unwritten traditions of freedom and by the legislation of provincial governments. At the beginning of this debate we heard from the Minister of Justice (Mr. Chrétien) some of the compelling arguments which the Canadian Bar Association has advanced in favour of enshrining a charter of rights in the constitution.

“The rights and freedoms in the motion before us include not only human rights such as freedom of conscience and religion, freedom of thought and expression, freedom of the press, freedom of peaceful assembly, but also democratic rights—the right to vote and to stand for office regardless of race, national origin, colour, age or sex.”

As late as 1909 a member of the House of Lords in England described as “momentous and far-reaching” the constitutional change involved in considering a woman eligible to vote.

Until the privy council of England made a ruling in the famous case known as the “persons” case, women were considered under the constitution to be incapable of taking part in public life.

In 1905, the superior court of British Columbia ruled that a woman was not a person qualified to become a lawyer in that province.

In 1915, in Quebec, during the proceedings launched by a woman who wanted to be admitted to the Quebec Bar, the judge stated that to admit a woman to the profession:

—would be nothing less than a crime against public order and an obvious breach of morality and public decency.

In 1928, five Alberta residents sent a petition to the government asking that the superior court rule on whether women were “qualified persons” to be appointed to the Senate under the provisions of section 24 of the British North America Act.

The Supreme Court of Canada rejected the concept that women were persons, but the case was appealed before the legal committee of the privy council of England. The privy council accepted the concept and the constitutional law now includes a provision to this effect.

[Page 3762]

One of the five women involved in the “persons” case was a police magistrate who, on more than one occasion, heard argued in her court the rather interesting proposition that “women are persons in matters of pain and penalties but not persons in the matter of rights and privileges”.

Those who argue that our rights are sufficiently well protected by existing law and traditions would do well to stop and reflect on the severe limitations faced by women even in this century. We can really take nothing for granted where basic rights are concerned.

In Canada, even in this century, laws have been passed which removed basic human rights from groups of citizens in different provinces. For example, in the west, Japanese-Canadians were deprived of their rights. There was suppression of freedom of religion in Quebec and, more recently, the right of citizens to seek employment from one province to another has been limited in Quebec and Newfoundland.

The resolution before the House provides for a Canadian charter of rights and freedoms binding on Parliament and on all provincial legislatures and governments. While it is true that a number of rights and freedoms are provided for by law now in such federal statutes as the Canadian Human Rights Act, the Canadian Bill of Rights, the Criminal Code and in various laws at the provincial level, most of these laws are subject to change, and the protection legislated today could theoretically be removed or limited by another enactment in the future. Entrenching the rights contained in this charter would place those basic human rights beyond the ordinary reach of Parliament or a provincial legislature.

—–o0o—–

October 23, 1980, Debate in the House of Commons (click HERE), p. 3990

Mr. Bussières: […] We shall therefore begin by patriating the constitution. This makes the hon. member for Joliette (Mr. La Salle) smile because he has never taken his role as a Canadian member of Parliament seriously. Does he really want Canadians to have a constitution? If so, let him support the resolution introduced by the government with the same energy he used to fight the Parti Québécois referendum. Moreover, Mr. Speaker, with this resolution, we shall be able to include a charter of rights in the Canadian constitution. Will the entrenchment of this charter of rights give more powers to the central government and take some away from the provinces?

The first aspect of the charter of rights concerns basic freedoms. We want to enshrine the freedom of conscience, the freedom of religion, the freedom of the press and the freedom of information in the constitution. The hon. member is showing that he is not very knowledgeable in this matter since the Canadian constitution does not provide for these freedoms. If we want to entrench these basic freedoms within the constitution, I do not see how this can add to the powers of the central government and what entrenchment of the freedom of religion, of thought, of the press and of information takes away from the provincial governments, since we also want to include in this charter of rights basic democratic rights, the right to vote and the right of eligibility to the House of Commons.

Mr. Speaker, what does the fact of entrenching these rights within the constitution add to the powers of the central government? Does the entrenchment of the right to vote, the right of eligibility, the right to hold elections within a certain time take anything away from the powers of the provinces? I do not believe that by enshrining these rights of the individuals, these basic liberties, these democratic rights, we are taking anything away from the provinces or adding anything to the powers of the central government.

Still within the context of this charter of rights, there is the freedom to move and to settle down anywhere in Canada for all Canadian citizens. Once again, this individual right of a Canadian citizen adds nothing to the powers of the central government and takes nothing away from the powers of the provincial governments. The same is true of the legal guarantees of citizens, and non-discrimination. What is also extremely interesting is that the equal status of the French and English languages everywhere in Canada will be enshrined in the constitution.

p. 4007

Mr. Cosgrove: Mr. Speaker, I would like to call to the recollection of all hon. members, including the hon. member who rose on a point of order, the inscription over the western archway of the Peace Tower which reads, “Where there is no vision, the people perish”.

Our proposed resolution respecting the constitution is one of vision. We recognize that if Canada is at long last going to take its place amongst independent nations of the world, we cannot do it by looking back to our colonial ties. We must look forward to the day when all decisions affecting our destiny are enacted on Canadian soil and by a government elected by the Canadian people.

The proposed resolution contains the vision of a people who are guaranteed freedom of conscience, opinion, assembly, and the right to vote. It entrenches the principle of equality before the law for all Canadians, irrespective of sex, colour or religion. It confirms and supports the rights of Canadians to move, to work and to live in any part of Canada, and to have their children educated in either official language where numbers warrant. And it enshrines the principle of sharing or equalization as past generations of Canadians, native and pioneer, have shown in this vast country of ours that survival as a nation depends on this spirit of generosity.

—–o0o—–

November 18, 1980: Max Cohen (Chairman, Select Committee on the Constitution of Canada of the Canadian Jewish Congress), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 7 (click HERE), p. 86

Professor Cohen: So much for the very important part of the elimination of Article 1. Section 2 then begins the real ball game, namely everyone has the following fundamental freedom. The one difficulty we had, as a committee, is with Section 2(b). What do we do with freedom of thought when you have got legislation dealing with have propaganda? How far is it possible to retain such articles as Section 281(1) of the Criminal Code and Section 281(2)? Moreover, you will see we have quoted from Article 20 of the United National Covenant of Civil and Political Rights where propaganda of this kind is regarded as inconsistent with freedom of speech.

[Page 87]

So we raised the question which seemed to me to be necessary to raise with you, that caution must be exercised, we hope, by the courts in due course, or by you, as draftsmen on how far you are prepared to push the concept of free speech consistent with our experience of hate propaganda.

One suggestion we make here-and I do not wish to do anything more than to drop it as a hint, but you may want to have some language that some of the modern constitutions have, which state very starkly and flatly that the advocacy of genocide or group libel is forbidden. But I had the honour to be the chairman of the special committee on hate propaganda in 1965. At that time we came to the flat conclusion that the advocacy of group hatred and genocide was totally inconsistent with the democratic process and no democratic state could tolerate it.

Now, whether you want to put that flatly in a constitution is for you to consider; but I think it is for us to bring it to your attention, because it is of importance.

Now, in Section 3, it is stated that:

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

We like that, but we think there is something missing there. What is missing is that the Section does not include the right to take office. It talks about being qualified, but it does not talk about the right to take office; you might have all the qualifications and have the right to vote. So you had better amend that to make it perfectly clear that if you have all those qualifications, then you equally have the right to take office, which is not there now.

—–o0o—–

November 20, 1980: Mary Eberts (Legal Counsel, Advisory Council 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. 131

Ms. M. Eberts: […] We are concerned that Section 26, which says that the charter will not affect laws relating to the admissibility of evidence, will allow a provincial legislature to say that the evidence of a woman or an Indian is not admissible in a court of law, either absolutely or without some special safeguards. We are concerned that it might allow a provincial legislature to say that testimony which is not sworn by a religious oath is not admissible in a court of law. If this Section, the merits of which have been questioned by other groups before you, is to be retained we strongly ask that it, too, be made subject to the safeguards in Section 15.

Similar problems arise with the restrictions that might, according to this charter, be placed on the right to vote, to hold public office and to participate in referendae. At the moment the charter simply says that these are not to be subject to unreasonable limitations and we think that we have a list of unreasonable limitations in Section 15 that should be applied to those clauses.

Lastly, we would suggest that this charter deals with rights which individual persons have over against government action. The nicely laundered neutral language “everyone” does not in our view sum up the real significance of a charter of rights for individual persons and for minorities. Moreover, the definition which has been given to the phrase “persons” has a special significance for women in this country because we had to fight for so long to have it established that we are persons and we do not wish those precedents to be tossed on the ash heap by the stroke of a legislature’s pen. So we would ask that the language of the charter be changed so that everywhere you see the phrase “everyone”. the phrase “every person” or “no person” to be used to emphasize the personal dignity involved in the rights which are conferred.

—–o0o—–

December 9, 1980: Jean Lapierre & Wilson Head (President, National Black Coalition of Canada), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 22 (click HERE), p. 21

Mr. Lapierre: There are some other places where you make recommendations. Section 3, for instance, you say that the phrase “unreasonable distinction and limitation” is to vague and should be removed. I think it was put there to make sure that voters are more than 18 years old, and prisoners do not vote and things like that. If we were to remove it, then where will be the majority rule and so on?

Mr. Head: Well, all we are saying is that you should state it clearly. If you are talking about 18 year olds, if you are saying 6 year olds voting, or under 18s then state it. Because what is “unreasonable changes from one generation to another”? All we have to do is to look back over the last ten years and see how “reasonableness” has changed.

—–o0o—–

February 20, 1981, Debate in the House of Commons (click HERE), p. 7520

Mr. Munro: […] Not so many months ago, in December, the Indian people came by the hundreds to Ottawa. The way in which they conducted themselves showed wisdom and sagacity which was, perhaps, the envy of many of us here in public life. They did not go in for confrontation but rather to win support through reason. It is indicative of the strength of their culture and the wisdom of their elders that they have been able to achieve this remarkable feat.

Some of the leaders are here with us, in the gallery, and I would like to recognize them. We have Sykes Powderface of the NIB and Saul Sanderson of the Saskatchewan Indian Association. We have Indian members of the minister’s office and staff. We have many who must feel a great sense of elation at the achievement of this unique feat. George Manuel, who used to be president of the NIB and is now head of the British Columbia Union of Chiefs, is here. It must be with some considerable satisfaction that they sec Parliament has at last entrenched these rights. Charlie Watt of the Indian com-

[Page 7521]

munity and Mr. Daniels of the Metis deserve a great deal of credit. Their expectations cannot be disappointed now.

If the resolution were not approved and if the entrenchment of these rights were to be omitted, as members of the official opposition indicate, then the aim of entrenchment of aboriginal rights would become just a token in the negotiating process and all this achievement would be lost. It would be intolerable to the original peoples of this country.

That is why, as Minister of Indian Affairs and Northern Development, having talked to them about their absolute determination to achieve this objective, it was very disappointing last night to learn of the position of Premier Blakeney. The vast majority of the federal members of the NDP have led in the entrenchment of these rights, and it seems strange for Premier Blakeney, in light of the significant native population in his province and what has been achieved in terms of that entrenchment, not to support the resolution at this stage. It seems to me a remarkable letdown for this jealously guarded right they now wish to see preserved.

One must recognize at the same time that they are the first citizens of his province, and as premier he has extolled the necessity for the entrenchment of these rights. So I can say with considerable confidence, as Sol Sanderson, president of the Federation of Saskatchewan Indians, has said, that if they say they do not have support in western Canada for entrenchment of these rights, they do not speak for the Indians of Saskatchewan and neither does Premier Blakeney; rather it is the federal Members of Parliament who have fought so long and hard behind the Indian people to gain this entrenchment.

Can we now talk about some of the general provisions rather than the special provisions respecting aboriginal rights. We know these rights for all Canadians will include basic democratic rights, fundamental legal equity, the elimination of discrimination based on race, religion and sex. But they have a special significance for the aboriginal people in our cities; these anti-discriminatory provisions will mean that they will have protection against discrimination in the cities and job markets everywhere.

Their equity in our legal system will be guaranteed; Indian women will be protected against discrimination both as Indians and as women. The discriminatory provisions of the Indian Act, intolerable to Indians, as they are to other Canadians, will be eliminated and the government and Indians will have time to work together to find new membership provisions that will be just, equitable and appropriate to the Indians’ cultural interests.

—–o0o—–

March 3, 1981, Debate in the House of Commons (click HERE), p. 7843

Mr. Dave Dingwall: […] This resolution before Parliament contains numerous provisions which, by themselves, are not exhaustive but, taken collectively, can be said to encompass all of what John Porter might refer to as the Canadian mosaic.

One important aspect of this constitutional package is the Canadian Charter of Rights and Freedoms. It is my assessment that enshrining in the Canadian constitution a charter of rights and freedoms is not only an important aspect of this constitutional package but a crucial aspect of confederation.

For a moment I would like very briefly to describe what some of those rights are. The fundamental rights are freedom of conscience and religion, freedom of thought, belief and opinion, freedom of expression, including freedom of the press and, of course, freedom of assembly. The democratic rights are the rights of individual Canadians to vote in elections of Members of Parliament and members of provincial legislatures. There are legal rights whereby everyone has the right to life, liberty and security of person. Everyone has the right not to be arbitrarily detained. Every Canadian also has the right to be secure against unreasonable search or seizure.

—–o0o—–

March 5, 1981, Debate in the House of Commons (click HERE), p. 7931

Mr. Weatherhead: […] The Constitution will make clear that no one will be prevented from voting in or contesting an election for the Parliament of Canada or a legislature of any province. This democratic right will ensure that one of the most fundamental principles of Canada is clearly spelled out, and that all citizens share in the governing of Canada.

The charter of rights contains provisions for fundamental freedoms that will guarantee Canadians freedom of expression, thought, conscience and religion. Canadians will be entitled to associate with people they choose, and to assemble peacefully with fellow citizens.

In a society which values democracy, freedom of the press is one of the most sacred principles that society can hold. Freedom of the press, therefore, is one of the fundamental freedoms this resolution seeks to enshrine in our Constitution.

Let me make it clear that in adopting this resolution, Parliament is not “granting” rights to people; we are merely affirming fundamental rights that we accept as a given fact of life in a democratic society.

—–o0o—–

March 11, 1981, Debate in the House of Commons (click HERE), p. 8132

Mr. Gus Mitges: […] Turning to the substance of the resolution, a Canadian charter of rights and freedoms will guarantee that Canadians are entitled to the following rights and freedoms with respect to all matters of federal, provincial and territorial responsibility: fundamental freedoms, which include freedom of con- science and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of

[Page 8133]

Information, and freedom of peaceful assembly and of association.

With respect to democratic rights, which comprise the right to vote in the election of the members of the House of Commons and of a legislative assembly, the charter will include the right to stand for office in either of these institutions; the requirement that no House of Commons and no legislative assembly continue for longer than five years except in extraordinary circumstances; and the requirement that there be an annual sitting of Parliament and of each legislature.

—–o0o—–

March 18, 1981, Debate in the House of Commons (click HERE), p. 8386

Miss Coline Campbell (South West Nova): […] What we have accomplished is a charter made in Canada incorporating the basic rights that belong to the people in every part of Canada. They are not to be denied by any legislature unless a court deems that such legislature has shown a justified reason promoting the greater good. In fact, one of the greatest accomplishments of the committee was the changing of clause 1, which gave power to the courts-and not to Parliament or the legislatures-to define or make rulings with respect to the rights of Canadians. I will read Clause I into the record again today:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

I return again to the idea of this Charter of Rights and Freedoms having been made in Canada. We have the Official Languages Act now. We have equalization. We have a bill of rights. Unfortunately, the clause I have just read is not in that

[Page 8387]

bill of rights, which renders it ineffective in overcoming Parliament’s intentions with respect to other acts.

We have human rights legislation. There should be mobility rights for all Canadians. Only recently have Canadians been stopped from working in a province because they did not reside in that province. Again I say that this charter has been made in Canada. All we are asking is that when an amending formula is being passed in the proposed Canada Act, we entrench these basic rights as well as the amending formula.

Let me once again review these basic rights and freedoms which the charter guarantees to all Canadians. There are the fundamental freedoms, which include freedom of conscience and religion, freedom of thought, belief, opinion and expression, freedom of the press and other media of information and freedom of peaceful assembly and association. We have democratic rights which ensure the continuation of elections and that every person has the right to vote in an election. We have mobility rights which enshrine the right of every Canadian to move freely from one province to another, to establish a residence, to seek a job anywhere in Canada as well as to enter, remain in or leave the country. We have minority language educational rights which provide that citizens of the English-speaking or French-speaking minority of a province have the right to educate their children in that minority language wherever numbers warrant.

—–o0o—–

March 19, 1981, Debate in the House of Commons (click HERE), p. 8426

Mr. Stevens: […] Another important aspect of this resolution to people in my constituency is the proposal to entrench in the Constitution the aboriginal and treaty rights of the Indian people. This was lacking in the original resolution and was of concern to many of the chiefs of the Indian bands in the dozen reserves throughout my constituency. This entrenchment was surely a dramatic breakthrough for the special committee on the Constitution and represents a considerable step forward in the guaranteeing of those rights and treaties.

Some chiefs have indicated that they would like to see more details of their rights spelled out in the charter, but most agree that a good start has been made in enshrining aboriginal and treaty rights for the aboriginal peoples of Canada in the amendments adopted.

The charter of rights and freedoms would guarantee to Canadians for the first time in our Constitution fundamental rights, democratic rights and legal rights. It would be binding on all levels of government. At a time when there is more and more government by regulation, orders in council and ministerial orders, this will be an effective way to protect citizens from abuses of power.

The existence of these entrenched rights-which will mean that both federal and provincial governments and every minister who makes laws and regulations that affect people’s lives will have to conform to the charter of rights-will ensure that these laws or regulations cannot be struck down by a court. It recognizes for the first time in our Constitution the multicultural nature of our country and ensures that the charter is interpreted in a manner to preserve and enhance this heritage, a heritage which applies to almost one third of our population and is cherished by us all.

—–o0o—–

March 27, 1981, Debate in the House of Commons (click HERE), p. 8693

Mr. Svend J. Robinson (Burnaby): Madam Speaker, my question is for the Solicitor General. As the minister knows, the government of Quebec recently amended its provincial elections act to permit prisoners the right to vote. Despite the fact that some 3,000 prisoners in provincial institutions are being granted this right to vote, 2,000 prisoners in federal institutions are being arbitrarily denied this fundamental democratic right by the minister, on administrative grounds.

In view of the fact that imprisonment involves the loss of liberty, but surely not the loss of all other fundamental civil rights, will the minister reconsider this decision and permit federal prisoners in Quebec to exercise the franchise extended to them by provincial legislation and not subvert the will of the Quebec provincial legislature, allowing these prisoners the right to vote in the upcoming Quebec election? 

Hon. Bob Kaplan (Solicitor General): Madam Speaker, in this matter there is a problem of order and security in the institutions.

Mr. Crosbie: Free them for the day.

Mr. Kaplan: It is quite right that it is a matter for the province to determine. However, we were able to permit the officials of the government of Quebec to conduct the referendum in the prisons, but conducting a referendum is much less complicated than conducting a full election. Votes go many hundreds of miles from prisons to polling booths around the province. Candidates also hundreds of miles away have the right to access to individuals in prisons.

I do not mean to indicate to the provinces that we would never allow elections to be conducted in federal institutions, although it is a fact that no other province or the federal government gives the right to these people to vote in their elections. I am anxious to see whether the problems of inmates’ privacy, order in the prisons and security can be successfully dealt with in one case in this country, that is, the conduct of this Quebec election in Quebec provincial institutions. If all of the problems which I have indicated-and there are others which I cannot describe in the format of the Question Period-can be met and dealt with satisfactorily, we would in the future be prepared, as we were in the referendum, to allow federal institutions to accommodate provincial election machinery.

Mr. Svend J. Robinson (Burnaby): Madam Speaker, naturally it is rather interesting to note that somehow order and security can be maintained in provincial institutions but not in the federal institutions.

The minister agreed at a recent session of the Special Joint Committee on the Constitution that the proposed charter of rights may very well extend the right to vote to all prisoners at both the provincial and federal level. Why is the government now, naturally with the support and encouragement of the Quebec Liberal leader, Claude Ryan-and it is not surprising in view of the 80 per cent result in favour of the PQ position in the referendum campaign last fall-denying this fundamental right to vote to prisoners, and very likely violating its own charter of rights and freedoms? 

Hon. Bob Kaplan (Solicitor General): Madam Speaker, when the hon. member says that matters of order and security do not seem to arise in the case of the provincial institutions in the province of Quebec, he is taking quite a lot for granted. The vote has not yet been held. There are a lot of problems still to be resolved. I do not know whether those institutions will be able to conduct fair elections consistent with order and security. Even if they do, the institutions for which Canada is responsible tend to contain more dangerous and violent offenders because they have been sentenced to two years before we get them, whereas in the provinces there are often people who have just been sentenced to 30 days. It is a totally different problem.

As to whether the right to vote is accorded by the charter of rights and freedoms to inmates, I speculated in front of the committee that it might. I do not know how a court will interpret, whether it is reasonable, as our Elections Act provides, to withhold the right to vote from inmates. I indicated it would be a matter for the court to decide. Certainly if the

[Page 8694]

court did decide that inmates should have the right to vote, we would proceed in the way we are proceeding now. Because Quebec made that decision we will try to accommodate that decision as best we can.

—–o0o—–

November 2-5, 1981, Federal-Provincial Conference of First Ministers on the Constitution, Verbatim Transcript [Including Agreement on Constitution] (click HERE), p. 37

Richard Hatfield: […] I have, as I said, a proposal to make with regards to the Charter of Rights.  I will refer to it now.  New Brunswick proposed that the resolution be altered in the following respects: only certain provisions of the charter would come into force immediately.  These include: Guarantee of Rights and Freedoms, Fundamental Freedoms, Democratic Rights, Mobility Rights, Official Languages of Canada and New Brunswick, Minority Language Educational Rights and General Rights that are included in Sections 25, 26, 29, 30 and 31 of the proposed resolution.  The remaining provisions of the Charter of Rights would be enacted, but would not come into force

[Page 38]

for three years.  These include: rights which a fair number of Premiers and ministers and people in Canada have suggested more time is needed to consider them and to improve on them.  These include: Legal Rights, Equality Rights, Enforcement and General matters that are included in Sections 27 and 28 of the proposed resolution.

This concept of deferred application for three years presently exists in the Charter, but applies only to Section 15.

During this three-year period these deferred provisions would be placed on the agenda of the proposed Constitutional Conferences as to be provided for in the resolution.  At the end of the three-year period, six provinces acting together could prevent the coming into force in Canada as a whole, any provision by depositing resolutions of their legislative assemblies with the Clerk of the Privy Council, opposing the coming into force of the provision.  Such a resolution could be adopted at any time after two years has elapsed from the coming into force of the other provisions of the Act.  The two-year restriction is designed to ensure that at least two years of open discussion prior to a commitment being made by the legislative assembly, during which a consensus on the scope of the Charter might be reached and an amendment secured, if necessary.

As I said, I support the amending formula outlined by the Premier of Ontario and am prepared to work with my colleagues and you, Mr. Prime Minister, to build on this to reach a consensus so that we can have finally in our own country our constitution with something in that constitution for the people, something important for the people of Canada that is a protection of their rights..

—–o0o—–

November 2-5, 1981, Federal-Provincial Conference of First Ministers on the Constitution, New Brunswick Proposals concerning The Charter of Rights (click HERE), p. 1

NEW BRUNSWICK PROPOSAL CONCERNING THE CHARTER OF RIGHTS

New Brunswick suggests that the proposed resolution be altered so that only certain provisions of the Charter would come into force immediately. These include:

Guarantee of Rights and Freedoms (section 1)

Fundamental Freedoms (section 2)

Democratic Rights (section 3 – 5)

Mobility Rights (section 6)

Official Languages of Canada (sections 16 – 22)

Minority Language Educational

Rights (section 23)

General (sections 25, 26, 29, 30, 31)

The remaining provisions of the Charter of Rights would be enacted, but would not come into force for three years. These include:

Legal Rights (section 7 – 14)

Equality Rights (section 15)

Enforcement (section 24)

General (sections 27, 28)

This concept of deferred application for three years presently exists in the Charter, but applies only to section 15.

During this three-year period these deferred provisions would be placed on the agenda of the Constitutional Conference to be convened annually to deal with these and other matters. At the and of this period six provinces acting together could prevent the coming into force of any provision by depositing resolutions of their legislative assemblies with the Clerk of the Privy Council

[Page 2]

opposing the coming into force of the provision. Such resolutions could be adopted at any time after two years had elapsed from the coming into force of the other provisions of the Act. The two-year restriction is designed to ensure at least two years of open discussion prior to a commitment being made by a legislative assembly, during which a consensus on the scope of the Charter might be reached and amendments secured, if necessary.

—–o0o—–

November 2-5, 1981, Federal-Provincial Conference of First Ministers on the Constitution, A New Brunswick Proposal to obtain wider support for the Constitutional Resolution (click HERE), p. 1

New Brunswick, which has consistently supported the Constitutional Resolution now before Parliament, is hopeful that Parliament will be able to approve a Resolution which has the widest possible support among the Canadian people.

The Resolution contains a number of elements which are of fundamental importance to the people of New Brunswick including constitutional recognition of the language rights of New Brunswickers, minority language education rights, an entrenched Charter of Rights, provision for equalization, confirmation of the Monarchy and, of course, Patriation.

While New Brunswick has given its unconditional support to the Resolution, it reserves the right to work toward changing some of it provisions now and once it has been returned to Canada from Great Britain. The opportunity for further discussion and amendment of the Constitution in the early years of its Patriation, provided for in the current Resolution, was a compelling factor in the Province’s decision to give unconditional support.

[Page 2]

In the last months many Provinces have not been able to support the Resolution. Their opposition has caused a deepening rift in the traditional cooperative approach to government in this country which has been the proud hallmark of Canadian federalism for many years.

What the reasons for this clear division the Canadian people are becoming impatient with the failure of the Governments to deal effectively with this fundamental aspect of their life.

New Brunswick has always been willing to discuss both the substance and process of the current Resolution with a view toward finding a way out of this impasse. The frustration of many Provinces to obtain from negotiations the constitutional provisions which they believe to be necessary is understood.

At the same time, New Brunswick believes that it is vital for this country that we patriate the Constitution and that this Constitution contains provisions for an entrenched Charter of Rights, equalization and language rights.

[Page 3]

In light of this, New Brunswick suggests that the Resolution before Parliament could be altered to ensure a substantial Constitution while at the same time providing ample opportunity for continued discussion and decision on many matters on which there is an honest difference of opinion.

To do this, New Brunswick proposes that Governments agree to a simplified Charter containing the essential and universally-accepted fundamental freedoms and democratic rights, together with minority language education rights, provisions affecting language rights for New Brunswick and the Federal Government and mobility rights.

All other provisions of the Charter of Rights would be suspended for a three-year period. […]

—–o0o—–

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]