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Constitution Act, 1982:

Section 8

Compilation of primary documents to assist in interpreting Unreasonable Search or Seizure in Section 8 of the Constitution Act, 1982

Contents

Part 1
Previous attempts at a Search and Seizure Clause

Part 2
Unreasonable Search or Seizure, in Successive Drafts of Section 8 of the Constitution Act, 1982

Part 3
Debates and Discussions on Section 8, including Federal-Provincial Conferences and the Special Joint Committee on the Constitution (1980-1982)

Endnotes

“Everyone has the right to be secure against unreasonable search or seizure.”

PART 1:

Previous Statutes and Attempts at a Search and Seizure Clause

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1978: 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 (HERE)

In addition to the fundamental rights and freedoms declared by section 6, it is further declared that, in Canada, every individual shall enjoy and continue to enjoy:

—the right to be secure against unreasonable searches and seizures;

—–o0o—–

PART 2:

Unreasonable Search or Seizure, in Successive Drafts of Section 8 of the Constitution Act, 1982

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

6. (1) Everyone has the right to life, liberty and security of his or her person and the right not to be deprived thereof except by due process of law, which process encompasses the following:

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

(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.)[1]

—–o0o—–

22 August, 1980: “Discussion Draft”[2]

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

(Source: Robin Elliot, “Interpreting the Charter—Use of the Earlier Versions as an Aid”, University of British Columbia Law Review (1982), p. 23. Click HERE.)

—–o0o—–

2, 5, or 6 October, 1980[3]: Draft Tabled in House of Commons and the Senate

8. Everyone has the right not to be subjected to search or seizure except on grounds, and in accordance with procedures, established by law.[4]

(Source: Canada, Parliament, “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” in Sessional Papers (1980). Sessional Paper 321-7/20. The text is found on p. 3. Click HERE.)

—–o0o—–

12 January, 1981: Draft Submitted to Special Joint Committee on the Constitution by Jean Chrétien

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

(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). The text is found on p. 11. Click HERE.)

—–o0o—–

13 February, 1981: Draft Tabled in the House of Commons

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

(Source: Canada, Parliament, House of Commons Journals, 32^nd Parl, 1^st Sess, 1981. The text is found on pp. 1267-1269. Click HERE.)

—–o0o—–

23/24 April, 1981: Draft Submitted to Supreme Court for Constitutional Amendment Reference

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

(Source: Canada, Parliament, House of Commons Journals, 32^nd Parl, 1^st Sess, April 23, 1981. Click HERE & Canada, Parliament, Journals of the Senate, 32^nd Parl, 1^st Sess, April 24, 1981. Click HERE.)

—–o0o—–

November 18/20, 1981[5]: “November Accord Version”[6]

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

(Source: Canada, Parliament, House of Commons Journals, 32^nd Parl, 1^st Sess, 1981. The text is found on pp. 4020-4022. Click HERE.)

—–o0o—–

December 2, 1981: Final Version

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

(Source: Canada, Parliament, House of Commons Journals, 32^nd Parl, 1^st Sess, 1981. The text is found on pp. 4323-4325. Click HERE.)

—–o0o—–

PART 3:

Debates and Discussions on Section 8, including Federal-Provincial Conferences and the Special Joint Committee on the Constitution  (1980-1982)

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

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October 7, 1980, Debate in the House of Commons (click HERE)

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

 —–o0o—–

October 17, 1980, Debate in the House of Commons (click HERE)

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November 18, 1980: Alan Borovoy (General Counsel, Canadian Civil Liberties Association), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada (click HERE to view the entire Special Joint Committee, Issue 7, then scroll to p. 11)

Mr. Borovoy: Mr. Chairman, we will pass on to the legal rights under Section 8. Everyone has the right not to be subjected to search or seizure, except on grounds and in accordance with procedures established by law.

[Page 12]

It would appear that this section may be a verbal illusion in the sense that it may pretend to give us something, but in fact, gives us nothing more than we already have.

At the moment, there can be no searches and seizures unless they are done in accordance with procedures established by law.

We would think that the real problem is, what do some of our laws themselves provide in the way of the power to search and seize.

Let me cite to you a case that received considerable controversy a few years ago, the famous or infamous Fort Erie search and strip drug raid.

Just to refresh your memory, the police conducted a drug raid in a small Fort Erie hotel. By the time they were finished their business, they had searched more than 100 patrons they had found in the lounge. In the case of the women, some more than 30 women they found, they had them herded into washrooms, stripped and subjected to vaginal and rectal examinations.

In the result, the police found only a few grains of marijuana and they were found not in any of the body orifices but rather on the floor of the lounge.

Indeed, what also emerged is that at no time did the police believe that everyone they searched was in unlawful possession of an illicit drug. But apparently under the Narcotic Control Act, there is a power with respect to places other than dwelling houses without any kind of a warrant, even a Writ of Assistance, even that is not required, forcibly to enter, search the premises and, according to the views of the Royal Commissioner who ultimately sat in that matter, searched all of the persons found on the premises whether or not each of the persons searched is himself or herself the object of reasonable suspicion.

If Section 8 existed at the time of the Fort Erie search, it would appear that we would have no basis to challenge this provision under the Narcotic Control Act.

We would suggest, therefore, that it be amended so as to create an opportunity to challenge the reasonableness of the law itself. The suggestion might be something like, everyone has the right not to be subjected to unreasonable search or seizure. That may be one way of accomplishing this goal.

The same considerations would apply with respect to Section 9. That does, in the case of detention and imprisonment, what Section 8 does with respect to search and seizure. Also with Section 11(d), the provision dealing with bail is the same thing. It would seem to us that we ought to be talking about in the case of arrest and detention something like arbitrary arrest and detention. If we are talking about reasonable bail, we might also talk about reasonable grounds and in accordance with fair procedures.

So that not only would the administrative practice be subject to challenge, but also in the event of an overly arbitrary law or a law which creates arbitrary powers, the law itself.

[Page 13]

I then turn to Section l0 and in order to give more practical significance to the various rights that accused people or arrested people would have, we would suggest that this be augmented, that people under arrest be informed of the rights that they are entitled to exercise as soon as practicable after the arrest and that a very key component of this is that they, as you can appreciate, many of the problems that arise with arrested people arise during the course of custodial interrogations. The person is under arrest, he is nervous, frightened, bewildered and he is then subjected to an interrogation.

One of the problems is that in those circumstances, these people may very well make themselves look guilty when they are not or guiltier than they are. The idea of having the right to retain and instruct counsel without delay is of course our answer to that, but in order to give that more practical significance, the suggestion we would make is that in the absence of some imminent peril to life or limb, that people in these circumstances not be subjected to custodial interrogation until they have been advised of their right to counsel and having been so advised, either exercise it or waive their right to exercise it.

I might add in this connection, that on the basis of the research that has been done into this, there is no reason for us to anticipate that law enforcement would suffer unduly from granting these additional protections to accused people.

As you know, some such protections were introduced into American Law by virtue of the Moranda case in the U.S. Supreme Court. Some surveys conducted shortly thereafter indicated that although the rate of confessions dropped after the Moranda rule went into effect, the rate of convictions and crime clearances, which are another way of saying crime solutions, did not drop.

So, in other words, it appeared that custodial confessions were not the indispensable element in law enforcement that many people had until then thought.

If these changes were made in Sections 8,9, 10 and 11, it may be that Section 7 may no longer be as necessary as it may be viewed now, if we could provide tougher safeguards with respect to search, seizure, arrest, detention, the treatment of people in custody and add to that habeus corpus a right against cruel and unusual punishment, it may be that Section 7 may no longer perform the function that it is viewed as being necessary at the moment.

Max Cohen (Chairman, Select Committee on the Constitution of Canada of the Canadian Jewish Congress), p. 89

Professor Cohen: […] Section 8. Now we are into a number of rather difficult, technical areas.

Everyone has the right not to be subjected to search or seizure except on grounds, and in accordance with procedures, established by law.

Now, you must have heard the criticism in the last several days about that. It means, really, that all you have to do is pass a law, no matter how severe, and, therefore, it meets the requirement. Clearly, that is not what was intended by the draftsmen. What they really meant was what we think you meant by our amendment on page five of our brief, and it should read something like this: Everyone has the right not to be subjected to arbitrary or unreasonable search or seizure. That is what you meant. Therefore courts thereafter can be guided by and legislatures would have to be guided by, not to be unreasonable in what they state, otherwise, you have no standard. Simply established by law is no standard whatever. It can be the most arbitrary law, the most vicious law and it still will be binding in this particular context.

Lorne Nystrom, Irwin Cotler (Canadian Jewish Congress), Joseph Magnet (Canadian Jewish Congress), Max Cohen (Chairman, Select Committee on the Constitution of Canada of the Canadian Jewish Congress), p. 108

Mr. Nystrom: In addition to Section 1, the present provisions as drafted in Section 8, 9 and part of Section 11 will authorize some of the procedures taken out pursuant to the War Measures Act in 1970, and that is why we made the recommendations that we did with respect to altering the language in Sections 8, 9 and I I with regard to the exemptions in regard to the procedures established by law. We believe that did not really provide any standard whatsoever and should be altered; otherwise the kinds of things like arbitrary searches and seizures could, in fact, be authorized by a statute such as the War Measures Act.

And if I may, Mr. Nystrom, in regard to an earlier question on the Canadian Civil Liberties Association and ourselves, speaking as a member of the Board of Directors, I think the; difference between the Canadian Civil Liberties Association and ourselves is not only that they have scepticism about this particular charter of human rights, some of which disquieting features we may share, but there is a greater scepticism about the charter as a remedy per se amongst the CCLA people and therefore, there might have been objection regardless of the nature of the charter that would have been before this body.

So, what you are basically saying to me is that if the charter as written had been in effect in 1970, what

[Page 109]

did happen probably would have happened, Would that have been the case about 40 years ago with the internment of the Japanese-Canadians, would this charter have prevented what happened to the Japanese-Canadians ?

Professor Cotler: I think it would have prevented, speaking with hindsight, that kind of internment; that would have been struck down by reason of the charter, though it is hard to say—and one cannot speculate what might have happened with regard to the War Measures Act. I suspect the authorizations there would have been sustained.

Professor Magnet: If I may just add a word to that, Section 6 provides, inter alia, that every citizen has the right to remain in Canada. As you know, the Japanese Canadians who were deported were citizens of Canada, and therefore would have had full protection of Section 6(1) and could not have been deported.

Professor Cohen: As a matter of fact, on that point, many Canadians forget that the Privy Council judgment on the Japanese Canadian case was a monstrously indifferent judgment when it came to simple principles of public international law, because they could easily have said that the deportation of Canadian nationals to a foreign country without that country’s approval is the imposition of one sovereignty over another, even though Japan was an occupied country, and the occupation power had to be stretched a long way to getting U.S. approval to land these deported Japanese Canadians.

So that there is not one piece of language in the judgment of that court which shows any understanding of what it means to deport your own nationals to the territory of another country. Now, this would prevent that.

Mr. Nystrom: Now, you referred earlier to the emergency suggestions you have about the limitation clause—Section 28(a), and you are talking about a two-third vote of parliament being needed to define—“emergency”. If there was an emergency, I understand you would suspend the rights we have in the Charter. Are you talking about a suspension of all the rigths in the Charter, or even if you do have an emergency which (you call here a war or domestic insurrection, or natural calamity) is affecting the life and safety of the nation or any part thereof, would there not be an argument for still maintaining the rights?

For example, can we justify, even in that kind of emergency, cruel and unusual punishment, referred to in Section 12 of the resolution, or some of the anti-discrimination stuff in Section 15, based upon sex or national origin?

Professor Cohen: I would have thought that we have not done our homework on this, that is to say the detailed kind of degree of suspension, what might or might not take place, depends upon the degrees of the emergency. We have not thought through the different types of emergency, from a great public health emergency to a natural calamity emergency to an invasion emergency, and that homework has to be done.

[Page 110]

Professor Cotler: I think you are right. There are some rights which should never be taken away, such as the right to be protected against cruel and unusual punishment. I had occasion as counsel to the CCLA to make a submission along those lines to the MacDonald Commission of Inquiry, and I would associate myself with the remarks therein made, that certain rights even in an emergency, must not be abrogated.

—–o0o—–

November 28, 1980: J.P. Nelligan (Chairman, Special Committee on the Constitution of Canada, Canadian Bar Association), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada (click HERE to view the entire Special Joint Committee, Issue 15, then scroll to p. 8)

J.P. Nelligan (Chairman, Special Committee on the Constitution of Canada, Canadian Bar Association): […] There are other cases where we think the rights are diluted. Section 8 which deals with protection against searches and seizures made contrary to law, of course does not protect against unreasonable seizures made under the law our proposals and those of most other bodies have always suggested that the prohibition should be of unreasonable searches and seizures.

Svend Robinson, J.P. Nelligan, & Victor Paisley (Chairman, Civil Liberties Section, Canadian Bar Association), p. 18

Mr. Robinson: You have referred, as have many other witnesses, to the defects in the wording of Section 1 and certainly my understanding is that the Committee will be proposing some amendments to that Section, because as you point out, otherwise the effect of the remaining portions of the Charter might be completely negated.

Now you have also referred in your brief to Section 8, Section 9 and Section II(e) of the proposed Charter and would you agree that in their formulation in talking about these rights being in accordance with the law that in effect there is no entrenchment at all because what is being done is to entrench the right of Parliament to enact any law it likes on those questions of search and seizure and bail and the other provisions which are referred to.

Mr. Nelligan: Mr. Paisley?

Mr. Victor Paisley (Chairman, Civil Liberties Section, Canadian Bar Association): Yes, that would be our concern. We conclude that by virtue of Section 1 Parliament has a free hand to enact any legislation in connection with the issues that you have raised and identified and it is tantamount to not entrenching these rights at all.

Mr. Robinson: You would go further, I assume, that also in Section 8, Section 9 and Section 11 which you have identified that because of the wording which states that anything that is done in conformity with the law is permitted under this Charter that in effect that is not entrenchment of those rights. It is entrenchment of the right of Parliament to enact any law it wishes on these areas.

Mr. Paisley: That is our position, yes.

—–o0o—–

December 8, 1980: Norman Whalen (Vice-Chairman, Canadian Federation of Civil Liberties and Human Rights Associations), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada (click HERE to view the entire Special Joint Committee, Issue 21, then scroll to p. 7)

Norman Whalen (Vice-Chairman, Canadian Federation of Civil Liberties and Human Rights Associations): […] Each is subject to parliamentary change. As an example, Section 8 provides that—and I quote:

8. Everyone has the right not to be subjected to search or seizure except on grounds, and in accordance with procedures, established by law.

Parliament, acting alone, can establish the procedure for search and seizure. The protection which entrenchment in a constitution should offer would thereby be denied. We have recommended, Mr. Chairman that in each of these sections the limiting words:

and in accordance with procedures, established by law.

should be replaced by the wording used in Section 7 of the Charter:

except in accordance with the principles of fundamental justice.

This would mean that, while Parliament could make the changes in each of these areas from time to time, these changes would always have to be in conformity with the principles of fundamental justice. The Supreme Court would set this standard, and each legislature and the Parliament of Canada would have to meet them.

Thus, only by amending the constitution would Parliament or a legislature be able to change the standard of protection which is provided in the Charter.

This, Mr. Chairman, is the type of entrenchment which, in our view, is essential, if the Charter of Rights is to have any meaning whatever.

—–o0o—–

December 9, 1980: Tamra Thomson (Ottawa Caucus, National Association of Women and the Law), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada (click HERE to view the entire Special Joint Committee, Issue 22, then scroll to p. 61)

Tamra Thomson (Ottawa Caucus, National Association of Women and the Law): […] Furthermore, just relating to evidence, we note that going back to Sections 8 and 9, the legal rights concerning search and seizure and detention and imprisonment, such rights are guaranteed in the Charter but they are permitted to be subverted by any procedure established by law. This would allow any legislature or parliament to subvert either of these legal rights, not to be subjected to search and seizure or not to be detained or imprisoned. We see this as another very important failure to guarantee rights within this Charter and therefore they should be amended to take out the provision which says “in accordance with procedures established by law”.

David Copp (Vice-President, British Columbia Civil Liberties Association), p. 107

Mr. Copp: […] Consider Section 8, which sets out one of the legal rights. It prohibits unlawful search and seizure.

Leaving aside for the moment our objections to the wording of that section, it is clear that it means nothing at all unless someone who has been subjected to an unlawful search has some recourse. Testimony before the MacDonald Commission has revealed that between 1972 and 1976 many premises in British Columbia were searched by police without any legal authorization, and I should add that in most cases the searches did not lead to the conviction of anyone for any offence.

William Black (Member of Executive Committee, British Columbia Civil Liberties Association), p. 109

Mr. Black: […] I would like to turn now to criminal proceedings. We have a number of concerns about the rights that the Charter gives with respect to the Criminal process. In many cases it seems that the rights that are given in the first half of the Section are snatched away by the second half of the Section. I am sure there have been other submissions to the Committee concerning Sections 8, 9 and 11(d), all of which are qualified by the provision that it is “except on grounds and accordance with procedures established by law”. In the case of Section 8, with search and seizure; Section 9, with arrests and detention, and Section 11(d) with regard to bail.

We think in effect this is what those sections then mean. Section 8 means that everyone is protected against unreasonable search, unless Parliament or any provincial legislature decides otherwise. Section 9 means a Parliament or provincial legislature can authorize detention or imprisonment for any reason whatsoever, or indeed for no reason at all. Section 11(d) means reasonable bail could be denied without reason.

We hope in your consideration of the proposed Charter that you will strengthen and change these sections. As they now stand we think that they give no rights whatsoever and we would prefer that they be omitted from the Charter rather than stand as they are. We hope, however, that you will revert to the language of the August federal draft submitted to the provinces in Sections 7, 8 and 11(d), which we think give much more effective protection with regard to those rights.

Senator Austin & William Black, p. 121

Senator Austin: Right. May I take us quickly to Sections 8, 9 and 11, on which you made comments, particularly your criticism of the phrase “except on grounds in accordance with proceedures established by law”. I agree with your concerns about the wide-open nature of that language and its lack of protection of rights.

Do you have a suggestion as to how we could approach a redraft which would take into account the more legitimate concerns of the draftsman in that particular section under legal rights?

Mr. Black: The draft submitted to the provinces in August by the federal government said everyone has the right to’ be secure against unreasonable search and seizure. Section 8 of that draft said everyone has the right not to be arbitrarily detained or imprisoned, perhaps unreasonably and arbitrarily would be even more advantageous.

—–o0o—–

December 11, 1980: Fred Sussman (Chairman of the Committee on Legislation, Canadian Association for the Prevention of Crime), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada (click HERE to view the entire Special Joint Committee, Issue 24, then scroll to p. 43)

Professor Sussman: […] We suggest that the following language be inserted: in Section 8, the language “arbitrary or unreasonable” so that the Section would be amended to read “everyone has the right not to be subjected to arbitrary or unreasonable search, or seizure.”

Warren Allmand, Tadeusz Grygier (Member of the Committee on Legislation, Canadian Association for the Prevention of Crime), and Fred Sussman, p. 53

Mr. Allmand: I just have one question.

With respect to Section 8, I have learned through bitter experience as Solicitor General, that our laws on search and seizure were not adequate, and that although there is a difference of opinion on it, that police are able to enter in situations where people did not approve, but obviously not against the law—I think I should refer to Section 8 at this point: which states, among other things,

Everyone has the right not to be subject

It seems to me that we, in order to be absolutely certain should make some reference to premises and not just the individual, because sometimes there are premises where it is not certain whether they relate in particular to individuals. We had the entry into the APLQ premises in Quebec and so on by police.

We have had other premises which were entered into which were not homes.

I think some way or other—and I would like to hear your views—there should be some reference to premises.

The B. C. Civil Liberties Association suggested that we should include the word “entry” in addition to “search and seizure” so that you could make sure that entries where no search or seizure was carried out, but let us say that photographs were taken, and observations made: could I have your views on that—and have those things set out separately, “entry”, “search and seizure” so that they are not all read together as one operation, and also including premises.

Do you mind commenting on that? And, by the way, I also took note of your other suggestion for changing that Section, but I am wondering what you think of these additions to that Section.

Mr. Grygier: May I just mention that nearly all constitutions that I have seen do have provisions concerning premises. Nearly all of them have it.

Mr. Allmand: Have the word premises.

Mr. Grygier: Not necessarily, inviolability of the home or something of that nature, but in fact what you say in essence is in the other constitutions.

Mr. Allmand: Fine, because the section as it reads now could mean just the search of the person.

[Page 54]

Mr. Grygier: I realize that.

Mr. Allmand: Not the premises.

Mr. Grygier: I realize that.

Mr. Allmand: What about the word entry.

[…]

Professor Sussman: I would like to just add a brief comment. The question takes me unawares. My personal view is that there is no question in my mind whether the word search would be interpreted to include entry on premises.

The difficulty that I see is in the use of the word everyone which suggests the individual, this is a charter to protect individuals, and the question that rises in my mind is what if you have premises which are collectively owned or possessed and do not relate to any particular individual? That I see is a difficulty but I will not attempt to solve it.

—–o0o—–

December 18, 1980: James McGrath, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada (click HERE to view the entire Special Joint Committee, Issue 29, then scroll to p. 26)

Mr. McGrath: […] You touched on it as well in your oral presentation and I think it speaks to the problems of legal rights, for example; what is the point of having entrenched legal rights such as, for example, set out in the legal rights section where everyone has the right not to be subject to search and seizure and the right not to be detained or imprisoned except on grounds and in accordance with procedures established by law. Well, that is meaningless if you do not have counsel, if you do not have somebody to advise you of your rights, and your organization of course attempts to do that although I suppose legal aid in a way does attempt to address the problem as well, but it does seem to me that the danger in entrenching legal rights is that you are affording a great deal of protection for the advantaged people who can afford counsel, whereas not addressing the problem of the disadvantaged who cannot afford counsel.

Robert Ogle & Clarke MacDonald (Senior Secretary, Office of Church in Society, United Church of Canada), p. 86

Mr. Ogle: […] There is a question that I would like to ask you about in relationship to the resolution because as far as I know in the brief you have not mentioned it and it has got to do with the rights of everybody when it comes to, under Section 8.

8. Everyone has the right no to be subjected to search or seizure except on grounds, and in accordance with procedures, established by law.

My own personal experience, having lived in totalitarian countries for a period of life, I realize that that particular kind of law or whatever we want to call it in its what I think flimsy position there, could in a sense take away most rights from everybody; and I notice in your brief you did not relate to that. I wonder if you have something to say about that particular section.

Mr. MacDonald: […] Regarding the question in reference to Section 8, I am glad this was raised because this is of concern to us even though it was not raised in the brief and it was of particular concern to one of the conferences of the church which has communicated with this Commission in writing and sent a copy to ourselves. We also feel, as Mr. Ogle has implied in his remarks, that this section is inadequate as indeed the very first section we feel to be inadequate which guarantees the rights and freedoms set out in it, subject only to such reasonable limits as are generally accepted in a free and democratic society with parliamentary system of government.

A free and democratic society with a parliamentary system of government can still do things that are not right, things that are not protecting the interests and well-being of citizens, not protecting their rights. This is in fact less than is stated by the

[Page 87]

Article 12 of the Universal Declaration of Human Rights of the United Nations where it says:

No one shall be subjected to arbitrary interference with his privacy, family home or correspondence nor to tax upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

That, it seems to us, goes beyond Section 8 of the proposed act.

We recognize in hindsight how a country allegedly civilized, allegedly free, allegedly operating on a strong parliamentary basis could nevertheless uproot hundreds of its citizens in British Columbia during the war and transport them to other parts of Canada, and that was done in a democratic society, a free society. There are other illustrations which Reverend Deschamps might want to refer to with regard to the War Measures Act but, yes, we are concerned about this Section, I would support the implications of your remarks.

—–o0o—–

January 6, 1981: Diana Davidson, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada (click HERE to view the entire Special Joint Committee, Issue 32, then scroll to p. 12)

Mrs. Diana Davidson (President, Vancouver People’s Law School Society): […] We are in agreement with the proposals that have been made time and again before you that Section 8 be modified to “everyone has the right not to be subjected to unreasonable search or seizure”; Section 9 be modified to “everyone has the right not to be arbitrarily detained or imprisoned”; and Section II(d) be modified to read “not to be denied reasonable bail without just cause”.

—–o0o—–

January 12, 1981: Jean Chretien, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada (click HERE to view the entire Special Joint Committee, Issue 36, then scroll to p. 11)

The Honourable Jean Chrétien (Minister of Justice): […] Legal Rights—there have been numerous representations made with respect to the legal rights in Section 8 and Section 9. The government is prepared to accept the recommendation of premier Hatfield of New Brunswick and of organizations such as the Canadian Civil Liberties Union, the Canadian Jewish Congress, the United Church, the Canadian Bar Association and others that these clauses be changed to read:

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

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

In other words, the fact that procedures are established by law will not be conclusive proof that search and seizure or detention is legal. Such procedures and the laws on which they are based will have to meet the tests of being reasonable and not being arbitrary.

—–o0o—–

January 27, 1981: Procedural/Votes on Section 8 in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada (click HERE to view the entire Special Joint Committee, Issue 46, then scroll to p. 8)

On Clause 8 of the proposed Constitution Act, 1980

Mr. Irwin moved,—That Clause 8 of the proposed Constitution Act, 1980 be amended by striking out lines 28 to 31 on page 4 and substituting the following:

“8. Everyone has the right to be secure against unreasonable search or seizure.”

Mr. Robinson (Burnaby) moved,—That the proposed amendment to Clause 8 of the proposed Constitution Act, 1980 be amended by striking all the words after the word “right” and substituting the following:

“not to be subjected to unreasonable search or seizure of person or property.”

After debate, the question being put on the sub-amendment, it was negatived on the following division:

[Page 9]

YEAS:

The Honourable Senators

Roblin
Tremblay

YEAS:

Messrs.

Beatty
Crombie
Epp
Fraser
Nystrom
McGrath
Robinson (Burnaby)—9

NAYS:

The Honourable Senators

Asselin
Austin
Hays
Lapointe
Lucier
Petten
Rousseau
Wood

NAYS:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)

Corbin
Irwin
Lapierre
Tobin
Mackasey—15

After debate, the question being put on the amendment, it was agreed to.

Clause 8, as amended, carried.

Jean Chretien, p. 67

Mr. Chrétien: Mr. Chairman, I have a brief comment to make on this.

This was discussed last week and Mr. Robinson referred to that time to Section 17 of the International Human Rights Act. In our charter, we attack this problem by referring to unreasonable search and seizure. To protect the privacy of citizens, we have included provisions in our charter that are not found in the international charter.

Insofar as the implementation of this right is concerned, there is legislation before the House of Commons at this time. I have already described what we are doing to protect privacy, but it is not necessary to include that particular right at this time. It is being considered by the House and is posing a number of problems.

The former Postmaster General has admitted that he too had a problem with this. The government has not yet decided to what extent we can examine letters and parcels entering Canada.

[Page 68]

There are problems of this sort that have not yet been solved. To protect privacy. we have included provisions dealing with seizures, arrests, etcctera. carried out by the police. So privacy will be protected from that angle.

There is just no need to include the vague term proposed by Mr. Robinson.

Later, when the legislation has matured, it will always be possible to include it in the charter.

To make things clearer and simpler, we are opposed to it at this time.

Jean Chretien & Svend Robinson, p. 69

Mr. Chrétien: The mechanism dealing with it will be found in the next clause dealing with unreasonable search and seizure. That is the way we found to be most logical.

Mr. Robinson: In the July document?

Mr. Chrétien: Yes; but we think it is sufficient to cope with the problem at this time. In the next clause you will find a satisfactory answer to the problem you have raised.

Mr. Robinson: To conclude, Mr. Chairman, with respect to the amendment, we would just like to deal with the concerns expressed by Mr. Lapierre who stated that because there was a lack of jurisprudence in this area of privacy and that it was not clearly defined and was not mature, I think he said, that we should not include it.

[Page 70]

Well, by that logic, Mr. Lapierre, through you, Mr. Chairman, why are we including the concept of fundamental justice. a concept around which there is no jurisprudence and which has not been legally defined and which has certainly not matured?

If that is your criterion, you voted to include that, Mr. Lapierre: so did I. I think it was sensible. So, those particular arguments, surely, would have applied. You say it is premature to include it in the constitution. This concept is one which was recognized before by the community of nations in 1948 in the United Nations Declaration on Human Rights. Canada became bound to accept the recognition of the principle of the protection from unreasonable interference with privacy in 1976 and in the document which Canada has tabled before the United Nations Human Rights Committee, in our commentary on Article 17, it is stated that we recognize the individual’s right to his privacy and reputation.

Well, if you do not know what it is, then how can you make a statement in your report to the United Nations Human Rights Committee that you recognize it, if your statement that you do not even know what it is has any substance whatsoever?

This is a fundamental right of all Canadians. As the Minister said in July, it is an essential right which should be recognized in a statement of fundamental rights and freedoms.

In dealing with the question of correspondence, certainly we believe that first class mail should be inviolate. Mr. Fraser has defended that right in his tenure as Postmaster General defended it, I say quite frankly, from the more aggressive moods of his colleagues at the time.

Mr. Chairman, this right is one which Canadians are entitled to, and I would hope that members opposite would recognize that—recognize the jurisprudence and vote for this amendment.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

An hon. Member: Mr. Chairman, could we have a recorded vote?

The Joint Chairman (Mr. Joyal): Yes.

Amendment negatived: Yeas, 9; Nays, 14.

Ron Irwin, Svend Robinson, Serge Joyal, John Fraser, John Chretien, Roger Tassé, Q.C. (Deputy Minister Department of Justice), Perrin Beatty, Fred Jordan (Senior Counsel, Public Law, Department of Justice), James McGrath, Jake Epp, Senator Tremblay, p. 101

On Clause 8—Search or seizure

The Joint Chairman (Mr. Joyal): It is an amendment moved by the government party.

I would like to invite Mr. Ron Irwin to do so.

Mr. Irwin: Thank you, Mr. Chairman.

[Page 102]

I move that Clause 8 of the proposed constitution act, 1980 be amended by striking out lines 28 to 31 on page 4 and substituting the following:

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Il est proposé

Que l’article 8 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 30 et 31, de ce qui suit:

«les fouilles, les perquisitions ou les saisies abusives.»

Merci, monsieur le president.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Irwin.

The Chair has been informed that the New Democratic Party has a subamendment to the present amendment, and I would like to invite Mr. Robinson to move the subamendment presented by the New Democratic Party and to make the usual comments.

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

Mr. Chairman, the subamendment to Clause 8 would read as follows:

I move that the proposed amendment to Clause 8 of the proposed constitution act, 1980 be amended by striking out all the words after the word “right” and substituting the following: “not to be subjected to unreasonable search or seizure of person or property”.

Et en français: il est proposé

Que le projet de modification de l’article 8 du projet de Loi constitutionnelle de 1980 soit modifié en remplaçant le mot «abusifs» par ce qui suit:

«ou les prises de corps abusives».

The Joint Chairman (Mr. Joyal): If I may suggest, Mr. Robinson, before you make the usual presentation, instead of using the words “prises de corps” that you use maybe the words “arrestations abusives”. I have some reservations as to the meaning of the words “prises de corps” in the context of “arrestations”.

If you agree, the Chair will substitute the word “arrestations” for “prises de corps”.

Mr. Robinson: Mr. Chairman, I am quite prepared to rely on your wisdom in the matter of the translation from French to English, particularly in this context.

The Joint Chairman (Mr. Joyal): Thank you.

Mr. Robinson: Mr. Chairman. the purpose of this amendment is to recognize that while the government is prepared to move on the question of the original Clause 8 which would have subjected protection to the right to be sure against unreasonable search or seizure, merely to the rule that there had to be a law justifying that search or seizure, the govern-

[Page 103]

ment now recognizes, in response to many, many witnesses who have appeared before us, that that was no entrenchment at all.

The purpose of our amendment is to make explicit something which I would assume was probably meant to be implicit, and that that this amendment is to apply to both person and property and not just to the person.

Indeed, it is my understanding that in the French version it is more clearly stated. I believe the French word is “perquisitions”. I believe that more explicitly refers to the concept of premises, Mr. Chairman—and property, of course.

Unfortunately, the English version of this does not make it explicit as would appear to be the case in the French version and certainly the explanatory booklet which accompanied the proposed constitutional resolution I do not seem to have with me at the moment.

In any event that booklet stated that this amendment was intended to apply to both person and property.

It is for that reason, as I say, because of the ambiguity of leaving it unclear that I wish to propose this amendment, referring explicitly to both person and property and to point out that the wording in English, as the governments amendment would propose, does not adequately make that clear. It says that everyone has the right to be secure against unreasonable search or seizure. It could be interpreted narrowly there to mean that we are strictly speaking about the person, and it is to make that explicit.

I would hope that the government side would be prepared to accept this clarifying amendment to their proposal.

The Joint Chairman (Mr. Joyal): Thank you very much. Mr. Robinson.

The honourable John Fraser.

Mr. Fraser: Thank you, Mr. Chairman.

Mr. Chairman, through you my first question is directed to the Minister.

I notice that in Clause 8 the words state that everyone has the right to be secure—and this is the government’s amendment—against unreasonable search and seizure.

Mr. Chrétien: It says “and or”.

Mr. Fraser: I am sorry, I may be reading the wrong document.

Mr. Chrétien: The document you have says “and” and the amendment proposed by Mr. Irwin says “or”.

Mr. Fraser: That was my first point and I am glad that is corrected. That I think is the way it ought to read, and I am satisfied on that.

The amendment that has been proposed seems eminently sensible and I would invite the Minister to tell us why it could not meet with the accommodation of the government.

Mr. Chrétien: The accommodation of. . .

[Page 104]

Mr. Fraser: . . .of the government. What is the difficulty that the Minister finds in the additional words that are being proposed in the amendment to the government’s proposition?

Mr. Chrétien: It is an unnecessary addition, it is not needed. What is written there is sufficient to cover that problem and these two words added do not clarify and do not add anything, according to the drafters, so why put words for nothing there. There is enough, anyway.

I am told that it might be under certain circumstances interpreted to restrict the meaning rather than to expand that meaning.

Mr. Fraser: Just a moment, can I see the exact words that you are proposing. I do not have them in front of me.

Mr. Robinson: The exact words are “not to be subjected to unreasonable search or seizure of person or property”.

Mr. Fraser: That is the whole point. The Minister says that they add nothing. Quite frankly, they add a great deal and as it stands in Clause 8, as the government proposes it, everyone has the right to be secure against unreasonable search or seizure; seizure of what, seizure of property or seizure of person and search of property or search of person.

Mr. Tassé: Mr. Chairman, there are court decisions both in this country and in the United States to the effect taht the search or seizure that we are talking about could apply to either persons or property and in effect if we were to restrict it in the way that Mr. Robinson in his amendment proposes it might have the effect of curtailing or restricting the right that is guaranteed by Clause 8 in this way, that in the United States similar provisions have been interpreted to cover voice communication, the interception, in other words, of communication, telephone conversations, and in effect if we were to restrict it to the seizure of persons or property we might leave out the possibility that a court would in the future say that this clause does in effect extend to the interception of voice communications. So we are in effect saying that this is unnessary, on the interpretation that these words have received in Canada, that it might in effect restrict the right that we think should be guaranteed under this clause.

Mr. Fraser: I take it that you are saying that if we put in the words “of person or property” that that would mean that an illegal interception of a conversation would not be covered.

Mr. Tassé: Yes, Mr. Fraser. I am saying if we qualify search or seizure the way that Mr. Robinson is saying it would be possible for a court to say that a search or seizure that we are talking about must be one that relates to property or the seizure of a person; and the seizure or the interception of a voice communication, a telephone conversation, would not be covered by these words, and in effect the right that is contemplated here would not reach that kind of interception, and we think that this is a right that should extend to voice. communications.

I might add that in so far as persons are concerned if we are talking of the seizure of a person that right is covered by the next clause, Clause 9, where we talk about their right not to be

[Page 105]

arbitrarily detained or imprisoned. So far as the person is concerned and the seizure of person that would be covered by the next clause.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fraser.

I invite the honourable Perrin Beatty followed by the honourable James McGrath.

Mr. Beatty: Mr. Chairman, I wonder whether I could ask the mover of the subamendment a couple of questions, just to get some clarification. I wonder whether Mr. Robinson might indicate when the subamendment he has moved says “everyone has the right not to be subjected to unreasonable search or seizure of person or property” he is referring here, if I understand him correctly, to seizure of property—that everyone has the right not to be subjected to unreasonable seizure of property. Is that correct?

Mr. Robinson: We are looking at the global concept of protection from unreasonable search or seizure of person or of property.

Mr. Beatty: So seizure then does refer to property here as well in your understanding.

Mr. Robinson: We would have to look at the over-all concept of the phrase “search or seizure” as it has been applied by the courts in this particular area.

Mr. Beatty: Are you not certain what it means? I am sorry, I just want to get some clarification, are you not certain that this refers to improper seizure of property?

Mr. Robinson: No, we are very concerned that the clause itself should be made explicit, that the protection of an individual from arbitrary or unreasonable search or seizure should extend both to that individual’s person and to that individual’s property, the special protection that is dealt with by the words “search or seizure”.

Mr. Beatty: Right, and by everyone do you refer simply to individuals or does this refer to associations such as corporations?

Mr. Robinson: My understanding of the word “everyone” as it has been interpreted earlier, Mr. Chairman, is that it is not restricted to natural persons but would also extend to the family farm, for example.

Mr. Beatty: And the multinational corporations as well, Mr. Robinson?

Mr. Robinson: Mr. Chairman, certainly the interpretation of the word “everyone” has not been restricted on the basis of citizenship according to the law officers of the Crown so far.

Mr. Beatty: I wonder whether I could get clarification from the officials in the Department of Justice. Mr. Robinson seems to feel that search or seizure should be looked at as a phrase where the two components were inseparable, if I understand his definition properly. Could a court not construe unreasonable seizure of property as an incident which would be intolerable by itself? In other words, could you not have either unreasonable search of property or unreasonable seizure of property from this wording?

[Page 106]

Mr. Jordan: Yes, Mr. Beatty, I think that is the correct interpretation. Unless you had a lawful warrant or an order from the court to go and seize the property in question, it would fall under this category.

Mr. Beatty: Mr. Chairman, I see that you are saying one last question. Could I ask Mr. Robinson the last question?

Mr. Robinson, have you checked this wording with the Government of Saskatchewan to see whether or not they approve of it and if so what effect they feel it would have, for example, on the nationalization of the potash industry?

Mr. Robinson: Mr. Chairman, naturally if we were to discuss this particular amendment with anybody it would probably be the Government of the Province of Prince Edward Island.

Mr. Beatty: Have you done that?

The Joint Chairman (Mr. Joyal): I would like to invite the Honourable James McGrath on this same subamendment.

Mr. McGrath: I just merely want to ask for some clarification because my questions in the main were covered by Mr. Beatty but I just want to ask for clarification because I am supportive of the subamendment. I wanted to ask Mr. Robinson how his amendment is consistent with the position that he and his colleagues took on Clause 7 whereby you succeeded by one means or another in getting the government to oppose our amendment which would include property rights in Clause 7. Now you are asking for protection of the property rights which you denied in the foregoing clause. That smacks to me of typical NDP inconsistency. and I think we are entitled to an explanation.

Mr. Robinson: Mr. Chairman, naturally we are dealing here with Clause 8, not with Clause 7, and we should be dealing with Clause 8 on its merits. As the law officers of the Crown have indicated this concept would in any event deal with the protection from arbitrary search or seizure of persons or property, and that point was made very clear, Mr. Chairman, in our discussions with respect to Clause 7.

It was pointed out without any doubt whatsoever by myself that there were other provisions in the proposed charter and I explicitly referred to Clause 8 which protected the family farm which Mr. Beatty and Mr. McGrath were so concerned about at that time; which protected the religious associations which they and I are so concerned about, Mr. Chairman; and it was because that protection remained in the resolution that we felt that the sweeping extension which was proposed by the Conservative Party, talking about the concept of enjoyment of property and applying whatever fundamental justice means to the enjoyment of property, might represent a massive intrusion into provincial jurisdiction.

On that basis, Mr. Chairman, in an attempt to salvage the asbestos industry in the Province of Quebec and the potash industry in the Province of Saskatchewan and to protect the very rapidly diminishing land supply in the Province of Prince

[Page 107]

Edward Island from incursion of foreign ownership we believe that the amendment to Clause 7 was inappropriate and we believe that the proposed amendment to Clause 8 will deal with the real concerns of the family farm owners In Canada.

Some hon. Members: Hear, hear.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath. I think, Mr. McGrath, that you have opened the door so that someone else has used your time on your behalf.

Mr. McGrath: I just merely wanted to ask Mr. Robinson how he can on the one hand expect the right to security of property and on the other hand he is denying the right to hold property. That is all, Mr. Chairman.

Mr. Robinson: Mr. Chairman, as we indicated on a number of occasions, the right to hold property is all very well for those who have means to hold property but we question singling out this particular economic right in Clause 7, recognizing that there were certain protections in the remaining part of the resolution, namely in Clause 8, which dealt with some of the concerns that had been expressed by my friends in the Conservative Party but did not take in, in the sweeping kind of manner that they sought to take in, the enjoyment of property at the same time that they did not make any suggestions whatsoever with respect to other fundamental economic or social rights in this country.

The Joint Chairman (Mr. Joyal): I do not have any other speakers on my list and I would like then. . .

Mr. Fraser: Just a point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Honourable John Fraser on a point of order.

Mr. Fraser: Very briefly, despite the inconsistencies that my friend Mr. Robinson is labouring under and trying mightly to explain, we are still going to support his amendment.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fraser. Honourable Jake Epp.

Mr. Epp: Mr. Chairman, I want to say to Mr. Robinson, now that he has turned himself inside out, that I want to convey to him our thanks and also indicate to him because he is now including property we will be supporting him.

The Joint Chairman (Mr. Joyal): I would like then to call the vote, Mr. Robinson.

Mr. Robinson: I would like to make reference to the document which I was searching for earlier, that is the government explanatory document called The Canadian constitution, 1980 and with respect to this particular section, this important section, it states

right to security against unlawful searches or seizures.

The Joint Chairman (Mr. Joyal): With great deference, Mr. Robinson, the Chairman has already called the vote on the motion and I think that the Chair is not really too strict by saying to you that you had plenty of opportunities by the

[Page 108]

questions that were put to you to state your points of view and I think that at this point the Chair should go on with the vote.

Mr. Robinson: Mr. Chairman, I am sorry, I thought there was an opportunity to conclude with a three minutes reply.

The Joint Chairman (Mr. Joyal): I think that you were the last one to speak before the Chair called the vote, if I remember well, on my list. I think that is undisputable.

So I would like then to call the vote.

An hon. Member: Recorded vote.

The Joint Chairman (Mr. Joyal): I would like to invite the Clerk of the Senate to call the vote on the subamendment as moved by the NDP Party.

Amendment negatived: yeas, 9; nays. 15.

The Joint Chairman (Mr. Joyal): So we come back to the main amendment as moved by Mr. Irwin. Mr. Robinson on the amendment.

Mr. Robinson: Just a question, Mr. Chairman, with respect to the extent of this amendment, would you comment, Mr. Minister, on the possibility that this particular amendment may severely restrict the applicability or indeed the existence of writs of assistance.

You will recall that the British Columbia Civil Liberties Association raised their concern on this particular matter, that writs of assistance are unprecedented in any other country in the Western World and that they hoped that this particular provision might restrict that.

What would be your opinion based on the discussions with the law officers of the Crown on the continuity of these draconian documents.

Mr. Jordan: Mr. Chairman, Mr. Robinson, I think Mr. Kaplan before the Committee last week addressed this question and indicated that it was our view that one would have to take a fresh look at the writs of assistance to see if they were issued and authorized in a fashion which would meet the unreasonable search and seizure criteria, and there could be certain problems there. I think he also pointed out that there was a moratorium on further issuance of any of them in the meantime. That does not address your question, I think the answer is yes, these would have to be subject to a thorough review to determine whether or not the blanket fashion in which they may be authorized now would constitute an unreasonable use of that writ as a means of gaining a search or seizure as the case may be—a search, I suppose.

Mr. Robinson: Thank you. I understand that Mr. Kaplan gave that interpretation. However, in view of certain confusions with respect to other interpretations of Mr. Kaplan. I had hoped that perhaps the Minister of Justice might clarify this matter.

Was then Mr. Jordan speaking on your behalf, Mr. Minister, on that?

Mr. Chrétien: I asked him to speak.

Mr. Robinson: On your behalf?

Mr. Chrétien: Of course.

Mr. Robinson: The final question, Mr. Chairman, on the proposed amendment deals with the matter of mail openings

[Page 109]

and there was some discussion earlier today about the question of mail opening, the opening of first class mail by members of the Royal Canadian Mounted Police.

Is it your view that this particular protection of the right to be secure against unreasonable search or seizure could have any effect whatsoever on the existing opening of first class mail, or possibilities of legislation which the present Solicitor General has indicated he personally supports to permit the opening of first class mail.

Mr. Chrétien: We will pass legislation on that and the court will apply its test to it. I cannot decide for the court. The problem of mail opening and the activities of the police to track down people who are criminals or are involved in espionage and what not is a different problem and that will have to meet that test.

Mr. Robinson: Have you had any interpretations or any advice from law officers of the Crown as to the likely success of a challenge to mail openings of first class mail by the RCMP if this provision is enacted.

Mr. Chrétien: I do not know if the law will be changed in terms of mail openings. If the law is changed. it will have to meet that test.

Mr. Robinson: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson. The Honourable Senator Tremblay.

[Translation]

Senator Tremblay.

Senator Tremblay: Maybe my question has already been answered. Our clerk has just told me that there has been a change in the French text, as for the number of the line that would be substituted. I thought it was by substituting two lines, 30 and 31, which would have meant that the remainder of the clause would have been left unchanged. The English amendment removed the last lines of Clause 8.

Now I have had an answer to my question.

The Joint Chairman (Mr. Joyal): You are right, Senator Tremblay, in the French version the word and the number “et 31” should be replaced by the word and the number “à 33.”

Senator Tremblay: That is right.

The Joint Chairman (Mr. Joyal): For consistency purposes, it has to be lines 30 to 33.

[Text]

Amendment agreed to.

Clause 8 as amended to.

John Fraser, p. 112

Mr. Fraser: Well, Mr. Chairman, if I may, your argument, then, is that for people who come here under whatever particular condition, that somehow or other arbitrarily, which can mean without any cause in law, can be deported.

Now, if the Minister says that that is the way that we view justice in this country for people that are here, whether they be landed immigrants or visitors—just please let me finish, they can be arbitrarily deported, then why in Clause 8 has the Minister said that everyone, and this now refers to anyone in Canada, has the right to be secure under unreasonable search and seizure?

Now, surely there you have not said there cannot be search and seizure, there you have said that it must reasonable search and seizure; in other words, the opposite of arbitrary.

Now, surely if we are going to talk about a system of justice in our country which has got to apply to people living in the country even though they may not yet be Canadian citizens or even people that may be visitors, surely what we are striving for is a system of justice that goes against the concept of arbitrary deportation or arbitrary detention or arbitrary anything,

In other words, we are trying to find a way that says that some rule of law must apply, and if a rule of law says that you can arbitrarily, on a whim, deport somebody, that certainly has got to be a rule of law that is unreasonable and there is no justice in it. Why should somebody be deported where, for instance, they can probably explain their case? They may not be in the wrong. Well, you can say under existing statutes they are protected to a certain degree but what we are talking now about is the fundamental justice that we want to bring into our constitution, the fundamental rules with which all our laws must subscribe because the immigration act and its regulations can be changed at any time willy nilly by a parliament.

—–o0o—–

February 23, 1981, Debate in the House of Commons (click HERE)

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

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March 13, 1981, Debate in the House of Commons (click HERE)

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

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March 23, 1982, Debate in the House of Lords, UK (click HERE)

—–o0o—–

ENDNOTES

[1]      Original not currently available. Discussion draft found in Anne Bayevsky, Canada’s Constitution Act 1982 & amendments: a documentary history (1989).

[2]      Elliot calls this the first version of the Charter.

[3]      Date for this draft is uncertain. Elliot places it as October 5. Parliament was only opened on October 6, 1980 when it was tabled. As for the October 2 date, it refers to “The document entitled ‘Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada’ published by the Government on October 2, 1980” which appears as the title of every issue of the Special Joint Committee on the Constitution.

[4]      In Elliot’s already cited work, he adds that “this provision derives in part from the U.N. Covenant.”

[5]      Elliot has the date as November 18. Source is from November 20.

[6]      As titled by Robin Elliot, op cit.