Document Information
Date: 1980-11-16
By: Roger Tassé, Department of Justice, Canada
Citation: Note for the Prime Minister from Roger Tassé, Override of Section 28 of the Charter of Rights (16 November 1981) [incl. Telex from Roger Tassé re: Override of Section 28 in Section 33 of Charter and Wording of Mobility Rights Derogation under Section 6(4) (16 November 1981)]
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Note: This document is discussed in an article that has been recently submitted to a peer-review journal.
S E C R E T
November 16, 1981
NOTE FOR THE PRIME MINISTER
SUBJECT: Override of Section 28 of the Charter of Rights
We are continuing our discussions with provincial officials with a view to their agreeing that there be no override possible in respect of section 28, except to the extent that an override might be adopted in respect of non-discrimination on the basis of sex found in section 15.
I have this morning sent out the attached telex to my provincial counterparts. That telex speaks for itself I believe. I hope that the approach that I have suggested will commend itself to my provincial counterparts as a means of implementing what I understand to be the decision of the First Ministers on November 5, that is:
1) an override be possible in terms of equality rights set out in section 15 including the right to non-discrimination on the basis of sex, and
2) that otherwise it be impossible to have an override in respect of section 28.
I will report back to you as soon as I have received a response from the provinces.
[Page 2]
In a conversation with .Mr. Broadbent today, I have indicated to him that I had been in touch with my counterparts this morning, suggesting an approach that would in my view resolve the problem and it is possible that he will raise the issue with you at Question Period today.
Roger Tassé
Encl.
November 16, 1981
TELEX – FLASH
TO: DISTRIBUTION
FROM: ROGER TASSE
DEPUTY MINISTER OF JUSTICE
RE: OVERRIDE OF SECTION 28 IN SECTION 33 OF CHARTER AND WORDING OF MOBILITY RIGHTS DEROGATION UNDER SECTION 6(4)
PROBLEM REMAINS IN WORKING DRAFT OF RESOLUTION PREPARED NOVEMBER 5, 1981 WITH INCLUSION OF SECTION 28 IN SECTION 33 OVERRIDE CLAUSE. AS DRAFTED, SECTION 33 WITH SECTION 28 INCLUDED WOULD ALLOW LAWS WHICH COULD OVERRIDE CATEGORIES OF RIGHTS WHICH ARE NOT OTHERWISE SUBJECT TO SECTION 33 OVERRIDE. FOR EXAMPLE, A VOTING LAW COULD BE ENACTED WHICH CONFERRED THE RIGHT TO VOTE UNEQUALLY ON MEN AND WOMEN EVEN THOUGH DEMOCRATIC RIGHTS ARE NOT SUBJECT TO OVERRIDE CLAUSE. THIS WAS NOT THE INTENTION OF THE FIRST MINISTERS ACCORD NOR OF THE OFFICIALS WHO DEVELOPED THE WORKING DRAFT.
AS I UNDERSTAND THE DESIRE OF A NUMBER OF PROVINCES TO HAVE SECTION 28 INCLUDED IN SECTION 33 OVERRIDE, IT IS TO ENSURE THAT A LAW OVERRIDING SECTION 15 PROTECTION AGAINST DISCRIMINATION BASED ON SEX WILL NOT BE STRUCK DOWN BECAUSE IT IS IN CONFLICT WITH THE GUARANTEE OF RIGHTS EQUALLY TO MEN AND WOMEN IN SECTION 28.
I BELIEVE THIS CONCERN CAN BE MET IN THE FOLLOWING MANNER:
(1) LEAVE SECTION 28 AS IT APPEARS IN THE WORKING DRAGT OF NOVEMBER 5: “NOTWITHSTANDING ANYTHING IN THIS CHARTER, EXCEPT SECTION 33, THE RIGHTS AND FREEDOMS REFERRED TO IN IT ARE GUARANTEED EQUALLY TO MALE AND FEMALE PERSONS.”, AND
(2) AMEND SECTION 33(1) TO READ: “PARLIAMENT OR THE LEGISLATURE OF A PROVINCE MAY EXPRESSLY DECLARE IN AN ACT OF PARLIAMENT OR OF THE LEGISLATURE, AS THE CASE MAY BE, THAT THE ACT OR A PROVISION THEREOF SHALL OPERATE NOTWITHSTANDING A PROVISION INCLUDED IN SECTION 2 OR SECTIONS 7 TO 15 OF THIS CHARTER, OR SECTION 28 OF THIS CHARTER IN ITS APPLICATION TO DISCRIMINATION BASED ON SEX REFERRED TO IN SECTION 15.”
[Page 2]
THE MODIFICATION IN SECTION 33 WOULD PUT BEYOND DOUBT THAT A LAW WHICH OVERRIDES SEXUAL NON-DISCRIMINATION PROTECTION UNDER SECTION 15 WOULD NOT BE SUBJECT TO CHALLENGE ON GROUNDS THAT IT CONFLICTED WITH THE GUARANTEE OF SEXUAL EQUALITY UNDER SECTION 28. AT THE SAME TIME, WOMENS GROUPS WOULD BE ASSURED THAT AN OVERRIDE OF SECTION 28 WAS LIMITED ONLY TO SECTION 15 NON-DISCRIMINATION AND COULD NOT BE USED TO ENACT SEX-BASED DISCRIMINATION LAWS IN RELATION TO OTHER CATEGORIES OF RIGHTS.
WITH RESPECT TO SECTION 6(4) ON MOBILITY RIGHTS WE WOULD PROPOSE, IN LIGHT OF THE VIEWS EXPRESSED BY NEW BRUNSWICK, NEWFOUNDLAND, ALBERTA AND SASKATCHEWAN, IN RESPONSE TO MY TELEX OF NOVEMBER 10, TO LEAVE THE TERM “RATE OF EMPLOYMENT” AS FOUND IN NOVEMBER 5 WORKING DRAFT. STATISTICS CANADA HAS NOW ADVISED THAT IT IS A MORE STABLE INDICATOR OF ECONOMIC PERFORMANCE THAN “RATE OF UNEMPLOYMENT”.
I PROPOSE TO ARRANGE A TELEPHONE CONFERENCE CALL TO DISCUSS THE FOREGOING PROPOSAL WITH YOU ON TUESDAY, NOVEMBER 17 AT 12 NOON EASTERN STANDARD TIME.
ROGER TASSE
DEPUTY MINISTER OF JUSTICE
DISTRIBUTION:
ALL PROVINCIAL DEPUTY ATTORNEYS GENERAL AND DEPUTY MINISTERS FOR INTERGOVERNMENTAL AFFAIRS (EXCEPT QUEBEC)