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Date: 2023-07-12
By: PrimaryDocuments.ca
Citation: PrimaryDocuments.ca, Section 11, Rights of the Accused: Compilation of primary documents to assist in interpreting the public meaning of Section 11 of the Constitution Act, 1982, First Ed. (July 2023).
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SECTION 11

Rights of the Accused

Compilation of primary documents to assist in interpreting the public meaning of Section 11 of the Constitution Act, 1982

First Edition

July, 2023

The Constitution Act, 1982

Part I. Canadian Charter of Rights and Freedoms

Legal Rights

Proceedings in criminal and penal matters

Section 11 Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omis-sion, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and pun-ished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

PART 1:

Drafting History of the Charter of Rights and Freedoms Pertaining to Section 11’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:

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

[This section is incomplete]

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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)

2 (e) the right as an accused person

(i) to be informed of the specific charge,

(ii) to be tried within a reasonable time,

(iii) to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal,

(iv) not to be denied reasonable bail without just cause having been established, and

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

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

(g) the right to the benefit of the lesser punishment where the punishment for an offence of which he or she has been convicted has been varied between the time of commission and the time of conviction;

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

(i) the right not to give evidence before any court, tribunal, commission, board or other authority, if unreasonably denied counsel or if denied protection against self-crimination or other constitutional safeguard

(j) the right to the assistance of an interpreter in any proceedings before a court, tribunal, commission, board or other authority, if the party or witness does not understand or speak the language in which the proceedings are conducted; and

(k) the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his or her rights or obligations.

(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)

(e) the right of a person charged with an offence

(i) to be informed of the specific charge,

(ii) to be tried within a reasonable time,

(iii) to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal,

(iv) not to be denied reasonable bail without just cause having been established, and

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

(f) the right not be tried or punished more than once for an offence of which he or she has been finally convicted or acquitted;

(g) the right to the benefit of the lesser punishment where the punishment for an offence of which he or she has been convicted has been varied between the time of commission and the time of sentencing;

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

(i) the right, when compelled to give evidence, to counsel, to protection against self-crimination and to any other constitutional safeguard; and

(j) the right to the assistance of an interpreter in proceedings before a court or tribunal, if the accused or witness does not understand or speak the language in which the proceedings are conducted.

(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)

(e) the right of a person charged with an offence

(i) to be informed of the specific charge,

(ii) to be tried within a reasonable time,

(iii) to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal,

(iv) not to be’ denied reasonable bail without just cause having been established, and

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

(f) the right not be be tried or punished more than once for an offence of which he or she has been finally convicted or acquitted;

(g) the right to the benefit of the lesser punishment where the punishment for an offence of which he or she has been convicted has been varied between the time of commission and the time of sentencing;

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

(i) the right, when compelled to give evidence, to counsel, to protection against self-crimination and to any other constitutional safeguard; and

(j) the right to the assistance of an interpreter in proceedings before a court or tribunal, if the accused or witness does not understand or speak the language in which the proceedings are conducted.

(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)

e) the right of a person charged with an offence

(i) to be informed of the specific charge,

(ii) to be tried within a reasonable time,

(iii) to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal,

(iv) not to be denied reasonable bail without just cause having been established, and

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

f) the right not to be tried or punished more than once for an offence of which he or she has been finally convicted or acquitted;

g) the right to the benefit of the lesser punishment where the punishment for an offence of which he or she has been convicted has been varied between the time of commission and the time of sentencing;

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

i) the right, when compelled to give evidence before any court, tribunal, commission, board or other authority, to counsel, to protection against self-crimination and to any other constitutional safeguard;

j) the right to the assistance of an interpreter in any proceedings before a court, tribunal, commission, board or other authority, if the party or witness does not understand or speak the language in which the proceedings are conducted.

(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)

11. Anyone charged with an offence has the right

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

(b) to be tried within a reasonable time;

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

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

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

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

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

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

(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)

9. Anyone charged with an offence has the right

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

(b) to be tried within a reasonable time;

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

(d) not to be denied pre-trial release except on grounds provided by law and in accordance with prescribed procedures;

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

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

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

(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)

10. Anyone charged with an offence has the right

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

(b) to be tried within a reasonable time;

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

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

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

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

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

(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

11. Anyone charged with an offence has the right

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

(b) to be tried within a reasonable time;

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

(d) not to be denied reasonable bail except on grounds, and in accordance with procedures, established by law;

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

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

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

(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

11. Any person charged with an offence has the right

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

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

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

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

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission that at the time of the act or omission did not constitute an offence under Canadian or international law;

(h) if finally convicted or acquitted of the offence in Canada, not to be tried for it again and, if so convicted, not to be punished for it more than once; and

(i) if convicted of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser 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]

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

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

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

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser 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 57 [Final Report] (13 February 1981). Click HERE)

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

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

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

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

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser 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

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

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

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

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser 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

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

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

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

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

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

—–o0o—–

November 26, 1981: House of Commons Draft

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

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

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

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

(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

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

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

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

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser 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

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

—the right to a fair hearing, in accordance with the principles of fundamental justice, for the determination of the individual’s rights or obligations;

(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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