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Catalogue No. CP22-568
Price subject to change without notice
ROGER DUHAMEL, F.R.S.C.
Queen's Printer and Controller of Stationery
Chapter I The Rights of the Individual
Chapter II A Constitutional Bill of Rights
Chapter III The Contents of a Canadian Charter of Human Rights
Chapter IV The Form of the Charter
I The British North America Acts, 1867 to 1965
II The Canadian Bill of Rights, 1960
III The Universal Declaration of Human Rights
IV The International Convention on the Elimination of all Forms of Racial Discrimination
V The International Covenant on Economic, Social and Cultural Rights
VI The International Covenant on Civil and Political Rights
VII The European Convention on Human Rights
VIII Amendments to the United States Constitution
IX Annotated list of principal Canadian legislation (both federal and provincial) protecting human rights
As Canada enters its second century of Confederation, Canadians could take no more meaningful step than to entrench firmly in our constitution those fundamental rights and liberties which we possess and cherish. A Canadian Charter of Human Rights would reflect and protect the high degree of freedom enjoyed by Canadians, and the unique bi-lingual character of the country. 1968 is a particularly appropriate year for us to act in this fashion for it has been named Human Rights Year by the United Nations General Assembly.
A constitutional Charter of Human Rights will form a first stage in the continuing process of redefinition of the Canadian constitution; it will provide the focus and set the pattern for the expectations of Canadians to be formulated into reality. It is a worthwhile task that we can all undertake with vigour and dedication.
I recommend to all Canadians the acceptance of a Canadian Charter of Human Rights.
L. B Pearson
The Rights of the Individual
Interest in human rights is as old as civilization itself. Once his primary requirements of security, shelter and nourishment have been satisfied, man has distinguished himself from other animals by directing his attention to those matters which affect his individual dignity.
In ancient times, and for centuries thereafter, these rights were known as "natural" rights' rights to which all men were entitled becallse they are endowed with a moral and ratiunal nature. The denial of such rights was regarded as an affront to "natural" law -- those elementary principles of justice which all apply to all human beings by virtue of their common possession of the capacity to reason. These naturaal rights were the origins of the western world's more modern concepts individual freedom and equality.
Cicero said of natural law that it was "unchanging and everlasting", that it was "one eternal and unchangeable law ... valid for all nations and for all times."
In the Middle Ages, St. Thomas Aquinas emphasized that natural law was a law superior to man-made laws and that as a result all rulers were themselves subject to it.
The Reformation brought sharply to the fore the need for protection of freedom of religious belief.
As the concept of the social contract theory of government developed in the 18th century, still greater emphasis came to be given to the rights of the individual. Should a government fail to respect natural rights, wrote Locke and Rousseau, then disobedience and rebellion were justified. Thus was borne a modern notion of human rights. So responsive were men to this notion that the greatest social revolutions in the history of the western world took place - one in America and the other in France - in order to preserve for individuals the rights which they claimed belonged to them.
This deep-seated desire for recognition of human dignity is reflected in the memorable words of the American Declaration of Independence:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights Governments are instituted among men deriving their just powers from the consent of the governed; that whenever any form of Government becomes destructive of these ends, it is the right of the people to alter or abolish it and institute new Government . . . . "
The Bill of Rights in the United States, enacted as an amendment to the Constitution, serves to safeguard the individual from governmental intolerance of the "unalienable rights".
In France, the 1789 Declaration of the Rights of Man and of the Citizen sought to achieve similar results. "Men are born and remain free and equal in respect of rights" it said. "The purpose of all civil associations is the preservation of the natural and imprescriptable rights of man. These rights are liberty, property and resistance to oppression."
In both the United States and France, there was embodied the idea that men shall not be deprived of liberty or property except in accordance with the law. This is a manifestation of the belief that men should be ruled by laws, not men; that a government has no more power than the people have agreed to delegate to it.
Monarchies, as well as republics, are influenced by these principles; the authority of kings, as well as of presidents, is limited. Many of the Commonwealth countries which inherited a tradition of parliamentary sovereignty have introduced constitutional restrictions, denying to the parliament as well as to the monarch the power to interfere with certain of the subjects' liberties. Constitutional checks on the exercise of governmental authority are a natural development in a democratic society.
The events of the Second World War were disturbing proof of the need to safeguard the rights of individuals. It is not by accident that an overwhelming number of newly independent states have included within their constitutions comprehensive bills of rights. Since 1945 considerable discussion has taken place in Canada as well concerning similar constitutional measures. The topic has been considered by the Canadian Bar Association, by parliamentary committees, and by numerous commentators. While no constitutional step has been taken. some legislative enactments designed to protect hmuan rights haye been passed into law. Parliament in 1960 enacted the Canadian Bill of Rights - a step of considerable significance and one which prepares the way for a constitutional enactment. Several provinces have introduced human rights legislation, and a committee engaged in revision of the Quebec Civil Code has recently proposed that a declaration of civil rights be included in the revised code.
These measures are all evidence of the interest of the Canadian people in some form of safeguard of individual liberty. To date, however, there does not exist in Canada any form of guarantee (beyond those few contained in the British North America Act) which a provincial legislature or Parliament, as the case may be, cannot repeal as freely as any other statute it has enacted. In this sense, no Canadian has the benefit of a constitutional protection as exists in a dozens of other countries.
An entrenched bill of rights would offer this constitutional protection, although at the price of some restriction on the theory of legislative supremacy. It is suggested that this is not too high a price to pay. In fact the theory of legislative supremacy is seldom pressed to its full extent. Indeed even in England, the birth-place of parliamentary government, fundamental liberties have been protected not only through the common law but also by means of such historic documents as Magna Carta (1215), the Petition of Right (1628), and the Bill of Rights (1689). The purpose of an entrenched bill of rights is simple and straight-forward. I has been described as serving "to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free spech and a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
A constitutional bill of rights in Canada would guarantee the fundamental freedoms of the individual from interference, whether federal or provincial. It would as well establish that all Canadians, in every part of Canada, have equal rights. This would consitute a major first step towards basic constitutional reform.
Canada could not choose a more appropriate year than this one for the consideration of a constitutional bill of rights for Canadians. 1968 has been declared International Human Rights Year by the General Assembly of the United Nations. The General Assembly has done so as an acknowledgement that the centuries-old interest in human rights is now, in the mid-twentieth century, of universal scope. The preamble of the United Nations Charter declares that the peoples of the United Nations are determined "to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women". As a reflection of this determination, the United Nations in 1948 adopted the Universal Declaration of Human Rights. Since that date some 15 separate conventions or treaties have been sponsored by the U.N. dealing with particular rights of a more specialized character. Only last year, however, were those rights which are generally regarded as "fundamental" formulated into two Covenants, (The International Covenant on Economic, Social and Cultural Rights; The International Covenant on Civil and Political Rights) open for signature and ratification by all states.
It is the hopeful expectation of the General Assembly that in 1968 an aroused awareness by all peoples will result in government action everywhere. Canada has the opportunity to take a lead in this respect.
Canada's main constitutional documents - the British North America Act, 1867 and its amendments - contain few guarantees of specific liberties. The courts have from time to time been invited to find in the B.N.A. Act some implied guarantee that fundamental rights are constitutionally protected from either federal or provincial encroachment, but such an interpretation has never since been the basis of a majority judgment in the higher courts. At this time in their history, Canadians are not afforded any guarantees of fundamental rights which (a) limit governmental power and (b) possess a large measure of permanence because of the requirement that it be ended not by ordinary legislative process but only by the more rigorous means of constitutional amendment.
The 1960 Canadian Bill of Rights has served to inhibit Parliament from amending the terms of that Bill and from violating its principles, but this is not a constitutional limitation on Parliament, only an influence. Additionally, that, Bill has in practice had a limited application because the Courts have held that it does not expressly over-ride any provisions inconsistent with it which may be contained in earlier federal statutes. While conceivably the 1960 Bill could have been interpreted so as to alter previously enacted statutes, the courts have not done this. There have been some conflicting opinions in various lower courts, but there has on the whole been a strong judicial tendency to assume that Parliament did not intend by the Bill of Rights to alter specific, pre-existing, inconsistent statutory provisions. The Courts have said instead that Parliament would have made an express amendment had it intended to alter its own previously enacted laws. A Supreme Court Judge did on one occasion deal with this point, and held that the Bill of Rights would prevail over conflicting statutory provisions even if those had been enacted prior in time to the Canadian Bill of Rights, but his judgment dissented from the majority view to the contrary. In the result, the position remains unsatisfactory.
Nor can any other human rights legislation (federal or provincial) be considered truly "constitutional" : all of it is subject to amendment or repeal by the enacting legislature; none of it attempts to affect the validity or effect of other conflicting laws. Such legislation, in addition, is generally directed against the invasion of human, rights by individuals, not by governments or legislatures (though in some cases it does bind the Crown).
To overcome these shortcomings while preserving the essential purpose of the present Bill, a constititutionally entrenched Bill of Rights is required which...wiILded ar.e.inY..alirLallY_ exiating or future statute in conflict with it. Language in this form would possess a degree of permanence and would over-ride even unambiguous legislation purporting to violate the protected rights.
In addition to these considerations of permanency, there is an even more pressing reason why a bill of rights, in order to be effective, must assume a constitutional -- rather than a merely legislative -- form. This arises out of the Canadian constitutional division of legislative competence as between Parliament and the provincial legislatures. In Canada, authority to legislate with respect to some of the rights regarded as fundamental lies with the Provinces, authority to legislate with respect to others of these rights lies with Parliament, and authority with respect to the balance is shared by the two. 0nly by a single constitutional enactment will the fundamental rights of all Canadians be guaranteed equal protection. A bill of rights so enacted would identify clearly the various rights to be protected, and remove them henceforth from governmental interference. Such an amendment, unlike most proposed constitutional amendments, would not involve a transfer of legislative power from one government to another. Instead, it would involve a common agreement to restrict the power of governments. The basic human values of all Canadians -- political, legal, egalitarian, linguistic -- would in this way be guaranteed throughout Canada in a way that the 1960 Canadian Bill of Rights, or any number of provincial bills of rights, is incapable of providing.
There are many different systems of classification used by writers to group and describe the various human rights. There is perhaps no classification system which is completely free of difficulties. The system employed here is but one of many and is used for the sake of convenience only.
Existing human rights measures in Canada are limited in scope. The Canadian Bill of Rights emphasizes political freedoms (speech, assembly, religion) and legal rights (freedom from arbitrary deprivation of life, liberty or property, and equality before the law) . Other federal legislation and most provincial legislation is confined to prohibitions against discrimination in employment, admission to trade union membership, or the provision of accommodation. Some do go further. The Saskatchewan Bill of Rights, for example, embraces political and legal rights as well as a wider range of egalitarian rights, and the old Freedom of Worship Act (enacted during the pre-Confederation Union and still in effect in Ontario and Quebec) gives some guarantee of freedom of religion.
It is now suggested that there be included in a constitutional bill add to them those linguistic rights which are recommended by the Royal Commission on Bilingualism and Biculturalism in the first volume of the Commission's report.
Rights which may be included in a bill of the sort under consideration here fall in to five broad categories: political, legal, egalitarian, linguistic, and economic. They are discussed in that order below.
This term is used in a broad sense to cover matters of belief, their expression and advocacy. The several political rights (here called "freedoms") are enumerated; following each there is a short discussion of the major legal considerations which attach thereto.
(a) Freedom of expression
These freedoms are presently protected legislatively in Section 1 of the Canadian Bill of Rights and in section 4 of the Saskatchewan Bill of Rights. The cases which have been decided to date indicate that these freedoms are largely subject to control by Parliament in the exercise of its criminal law power. There are, however, aspects of freedom of expression which may be subject to provincial limitation, as for example through the law of defamation, or through laws regulating advertising in provincial and municipal elections. For this reason adequate protection can only be offered in the form of a constitutional bill.
The means of definition of this freedom are of equal importance to its declaration. The question arises whether freedom of expression is best guaranteed in simple terms without qualification, or whether the limitations O'f this freedom ought to 'be specified. Opponents of an unconditional declaration fear that such wording might restrict the application of Criminal Code prohibitions against o'bscene or seditious publications, or provincial laws pertaining to defamation or film censorship. This is unlikely, however, for fre e speech as it developed in England was never equated with complete license. It has long been recognized, even before the Americans expressly guaranteed this right in their constitution, that free speech was subject to limitations for the protection of public order and morals. The United States courts have given the guarantees of the First Amendment very wide scope, but have upheld laws which prohibit speech inciting to unlawful acts, and laws which punish the publication of matter which is purely obscene with no significant r edeeming social value. Defamation laws have also been allowed to operate.
In Canada, existing federal laws against sedition and obscenity have been construed so narrowly that it is unlikely they would be held to conflict with a guaran tee of free speech. The obscenity pro- visions of the Criminal Code have been applied since the enactment of the Canadian Bill of Rights without any conflict being recognized. It is also unlikely that existing provincial laws against defamation would be upset by a free speech guarantee. As long as such legislation is confined to protecting long-recognized private rights of reputation there would be no conflict with the concept of "free speech". Nor is it anticipated that infringements of provincial laws relating to the regulation of advertising, so long as these are clearly related to some legitimate business regulation, would result. (A provincial protection of a right to privacy, now contemplated in some provinces, should also be possible.)
The alternative to a broad, unqualified description of "freedom of speech" is an enumeration of specific exceptions. An example of this more detailed type of language is found in Article 10 of the European Convention on Human Rights:
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of fronti ers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conclitions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of rights of others, for preventing the disclosure of inform ation received in confidence, or for maintaining t he authority and impartiality of the judiciary. A similar, detailed, approach has been taken in several constitutions patterned after the European Convention. By specifying the grounds for permissible limitations upon the right, possible uncertainties have been removed . The disadvantage of this technique, however, is its lack of flexibility and the difficulty of adapting the language to changed circumstances. For this reason the simple form of description is recommended.
(b) Freedom of conscience and religion
There is some legislative protection now. The Canadian Bill of Rights, section 1, recites "freedom of religion". The Saskatchewan Bill of Rights, section 3, declares the right to "freedom of conscience, opinion, and belief, and freedom of religious association, teaching, practice and worship". The Freedom of Worship Act (applicable in Ontario and Quebec) declares the right to "the free exercise and enjoyment of religious profession and worship". It is arguable, - however, that a guarantee of "freedom of religion" does not protect the freedom of the person who chooses to have no religion. To protect such persons, consideration could be given to widening the guarantee to protect, for example, "freedom of conscience".
Freedom with respect to the individual's internal belief or conscience might well be considered absolute and not qualified in any way. It is the external manifestation of the exercise or furtherance of beliefs which may give rise to problems and the need for limitations in the interest of public safety and order.
In these areas, for example, no one would dispute that federal laws should be able to prevent acts in the exercise of religious beliefs which would constitute obscenity, sedition, bigamy, or homicide. It is more debatable, however, what further powers Parliament should possess to permit it to restrict other religiously-motivated acts. An example is the imposition of Sunday closing of businesses on Christians and non-Christians alike. The Supreme Court of Canada has said that The Lord's Day Act is not a denial of freedom of religion but this is not to say that such limitations are consistent with freedom of "conscience".
The extent of provincial jurisdiction over matters of religion is far from clear, but it is evident from Sec. 93 of the B.N.A. Act that the provincial legislatures have some competence and responsibility in respect of the religious aspects of education.
Thus, constitutional action is required in order to protect all Canadians from legislative interference with their religous beliefs.
(c) Freedom of assembly and association
These freedoms are now legislatively protected by section 1 of the Canadian Bill of Rights and by section 5 of the Saskatchewan Bill of Rights. They are closely related to freedom of expression and many of the comments made with respect to legislative jurisdiction over freedom of expression are equally applicable here. As with freedom of expression, they are not usually considered to be absolute but rather are subject to limitations in the interest of public order. Present federal limitations of this nature are mainly found in the Criminal Code relating to unlawful assembly, riot, conspiracy, watching and besetting, and disturbing the peace. Provincial limitations exist in laws dealing with the incorporation or regulation of commercial, educational, charitable and other organizations otherwise within provincial control, in the use of roads and parks for public assemblies, and the like. All these limitations appear to be consistent with freedom of assembly and association so long as they are clearly related to the preservation of public safety and order.
These rights go to the very root of the concept of the liberty of the individual, so highly prized in Canada. They are dealt with now, to a certain extent, in sections 1 and 2 of the Canadian Bill of Rigbts and in section 6 of The Saskatchewan Bill of Rights. They are recognized as well by other statutory provisions and by rules of statutory interpretation developed by the courts. There is not, however, any constitutional protection of the rights.
These rights and their protection fall within both federal and provincial jurisdiction, depending on the context. Both federal and provincial legislation can deal with deprivations of liberty and property, and with judicial and administrative procedures affecting the citizen's interests. Any constitutional guarantee of security of life, liberty and property, or of fair legal proqedures, will affect equally the federal and provincial governments.
The Canadian Bill of Rights lists most of the legal rights which need protection; with modification its provisions could form the basis for similar guarantees in a constitutional bill. Using it as a frame of reference, it is suggested that the rights enumerated below should be guaranteed:
(a) General sewrdy of life liberty and property
The Canadian Bill of Rights declares
The right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law.
The phrases "due process of law" and "according to law" or "according to the law of the land" have their origin in Magna Carta. They have been employed in one form or another in England, the United States and many other countries. The words "due process of law" have been given a double interpretation in the United States. The first of these is as a guarantee of procedural fairness. In this respect, similar words used in the Canadian Bill of Rights are intended to guarantee the specific requirements of fair procedure. The words "due process" have, in addition , been given a substantive interpretation in the United States' courts with the result that the words have been employed as a standard by which the propriety of all legislation is judged. At one time the words used in this latter sense resulted in the judicial invalidation of minimum wage legislation, laws against child labour, and hours-of-work statutes. They were also used as a basis for courts to review public utility rates set by legislatures or regulatory agencies in order to ensure that the rates were, in the view of the courts, adequately compensatory. While more recently the substantive effect given to "due process" has diminished considerably in the United States, the demonstrated potential of this phrase could create some uncertainty in Canada unless its meaning was clearly recited.
In examining American experience with "due process", it appears that the guarantee as applied to protection of "life" and personal "liberty" has been generally satisfactory, whereas substantive due process as applied to "liberty" of contract and to "property" has created the most controversy. It might therefore be possible to apply the due process guarantee only to "life", personal "liberty" and "secUl;ity of the person". The specific guarantees of procedural fairness set out elsewhere in the bill would continue to apply to any interference with contracts or property. In this fashion the possibility of any substantive "due process" problems would be avoided.
In the alternative, if "due process" is to remain applicable to "liberty" of contract and to "property", there should be spelled out in some detail what is involved. The European Convention and some modern constitutions use this technique with respect to each of the guarantees of life, liberty and property.
(b) Equal protection of the law
The Canadian Bill of Rights, section 1 (b) declares "the right of the individual to equality before the law and the protection of the law".
It might be argued that this wording serves to overlap other provisions: "protection of the law" is already assured, for example, by the "due process" clause; "equality" would likely also be protected by a general prohibition against discrimination (such as appears in the Canadian Bill of Rights, and as is proposed for the constitutional bill of rights). There may, however, be rights implied in a general guarantee of equality before the law which are not otherwise specified. Because the basic concept is sound, it is desirable to retain some such guarantee.
The phrase "equality before the law" has at least once been construed narrowly in Canada. It was there taken to mean that if one person is treated the same as all others of his race, this is "equality" even if his race is treated differently from other races. The comparable provision in the Fourteenth Amendment to the U.S. Constitution guarantees "the equal protection of the la.ws". This has generally been construed in the American courts to prohibit legislative distinctions as between va.rious classes of persons except those rationally related to some legitimate legislative object. If this is the result which is desired, there would likely be some advantage in using the American wording.
(c) Cruel punishment, etc.
Section 2 (b) of the Canadian Bill of Rights now provides that no law of Canada is to be deemed to "impose or authorize the imposition of cruel and unusual treatment or punishment". This provision is similar to one in the English Bill of Rights of 1689. A guarantee against such treatment or punishment is also found in the Eighth Amendment to the U.S. Constitution, where it has caused few difficulties. While a court would likely be extremely reluctant to substitute its opinion of a proper punishment for that of the legislature, the power to do so could prove useful in extreme cases.
(d) Rights of an arrested person
Section 2(c) of the Canadian Bill of Rights states that no law of Canada shall be deemed to
deprive a person who has been arrested or detained
(i) of the right to be informed promptly of the reason for his arrest or detention,
(ii) of the right to retain and instruct counsel without delay , or
(iii) of the remedy by way of hab eas corpus for the determination of the validity of his detention and for hi s release if the deten- tion is not lawful ...
It is recommended that the same rights be protected in a constitutional bill.
The scope of Clause (ii) has not yet been determined by the courts, but this jurisprudence will develop in due course. One aspect might better be dealt with more specifically, however, than was done in the 1960 Canadian Bill of Rights. This involves the effect of the denial to an accused of the opportunity to retain counsel. Judicial decisions to date under the Canadian Bill of Rights have held that, in instances where counsel is denied, such denial does not affect the admissibility of evidence obtained from an accused interrogated or examined without benefit of counsel. It might be preferable, and more in keeping with the spirit of the bill, to provide that evidence so obtained is inadmissible and that the resulting convictions are invalid if they cannot stand in the absence of the inadmissible evidence.
(e) Right of a 'Witness to counsel
Section 2(d) of the Canadian Bill of Rights provides that no law of Canada is to be deemed to
authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self-crimination or oth er constitutional safeguards ...
and this right should appear in a constitutional bill.
(f) Fair hearing
Section 2( e) of the Canadian Bill of Rights provides that no law of Canada shall be deemed to
deprive a person of th e right to a fair hearing in accord ance with the principles of fund amental justice for the determination of his rights and obligations ...
This is a fundamental requirement which is already generally recognized in the public law of Canada. In a new constitutional bill of rights it might well be placed in association with the fundamental rights to life, liberty and property.
This kind of guarantee is fundamental to the impartial administration of justice. The general requirements of a "fair hearing" are well known. There are some uncertainties, however, as to where a "fair hearing" is required. The language of the Canadian Bill of Rights indicates that it is required when a person's "rights and obligations" are being determined. These words appear also in the European Convention on Human Rights and some other constitu- tions drawing upon it. If construed narrowly, such words would apply only to situations involving a dispute between two parties over pre-existing rights. Wider language may be needed if it is the intention that "fair hearing" requirements be extended to such activities as the granting or withdrawal of licences by government agencies, the certification or decertification of unions. or the conduct of a hearing in an investigation under the Income Tax Act or under a provincial Securities Act.
(g) Presumption of innocence
Section 2(x) of the Canadian Bill of Rights states that no law of Canada is to be deemed to
deprive a person charged with a crimin al offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and imp arti al tribunal; or of the right to reason a ble bail without just cause ...
The reference to "according to law" , "fair hearing", and "independent and impartial tribunal" reiterate rights guaranteed elsewhere. The requirement of a "public" hearing need not create difficulties. The courts have not construed the Canadian Bill of Rights as pre- venting the closed court sittings now authorized by the Criminal Code in cases involving. for example, the protection of young accused persons or the security of the state. If desired, however, specific exceptions could be made along the lines of those contained in the European Convention , and in the constitutions patterned on it.
The presumption of innocence is a fundamental ingredient of Canadian criminal justice, and must be guaranteed. This is not to say that the various federal and provincial penal statutes which contain "reverse onus" clauses (clauses which take the existence of certain facts to be proof of other facts unless the accused can produce evidence to the contrary) will be declared unconstitutional. So far the courts have distinguished this kind of factual presumption from a presumption of guilt, and have allowed such federal statutory provisions to apply in spite of the Canadian Bill of Rights.
A constitutional bill of rights will assure that these provisions regarding presumption of innocence, and fair and public hearings will apply equally to prosecutions under provincial legislation as to prosecutions under federal law. Such protection is not afforded by the 1960 Canadian Bill of Rights.
(h) The right to an interpreter
Section 2(g) of the Canadian Bill of Rights states that no law of Canada is to be deemed to
deprive a person of th e right to th e assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission , board or other tribunal, if he does not und erst and or speak the language in which such proceedings are conducted.
This is an important right, and should be retained.
(i) Other legal rights for possible inclusion
There are other legal rights which might be included in a constitutional bill of rights which were not included in the 1960 Canadian Bill. Following are some examples.
(i) Guarantee against ex post facto laws creating crimes retro-actively. Article I, section 9 of the U.S. Constitution gives such a guarantee. as does Article 7 of the European Convention.
(ii) Guarantee against unreasonable searches and seizures. The Fourth Amendment to the D.S. Constitution provides such a guarantee. Article 8 of the European Convention and some constitutions based on it appear to emphasize protection of the private home against interference. At the present time in Canada, evidence obtained not only by means of an unreasonable search but by actual illegal mean s (as, for example, by theft) is generally completely admissible in the Courts. It is suggested that this double standard of conduct should no longer be tolerated on the part of law enforcement agencies. Illegally obtain ed evidence should be as inadl~is sible as an illegally obtain ed confession.
(iii) Guarantee of the right of a citizen not to be exiled. This may be provided for in section 2(a) of the Canadian Bill of Rights where it refers to "exile", but that clause only prohibits "arbitrary" exile . It is suggested that any exile, whether arbitrary or not, should be prohibited. Apart from the inhumanity of exile there is serious doubt that, in international law, any country is entitled to banish its own citizens. ("Exile", as used h ere, is to be distinguished from "deportation", which applies only to aliens. If desired, the definition of exile could be extended to include deprivation of citizenship. If this is done, however, the qualification of "arbitrary" should be retained.)
This term as used here refers to guarantees against governmental action which would tend to distinguish certain persons or groups of persons for different treatment on the basis of their race, national national origin or factors unrelated to the purpose for which the distinction is made.
Existing legislation shows a widespread concern about racial and similar discrimination. The Canadian Bill of Rights declares that the rights listed in Section 1 (due process; equality beofre the law; freedom of religion, speech, assembly, and the press) exist without discrimination by "race, national origin, colour, religion or sex". Federal legislation and legislation in eight provinces and both territories prohibit discrimination in employment. Seven provinces and the two territories also prohibit discrimination in public accomodation. The greater number of these statutory provisions, however, are designed to affect only private conduct. A constitutional bill of rights would serve to limit discriminatory activities on the part of governments as well.
The prohibited criteria of discrimin ation. as well as the areas of activity where discrimination is forbidd en , should be considered in any anti-discrimination clauses:
(a) Prohibited criteria of discrimination
It is suggested that the bill should provide that the criteria listed in section 1 of the Canadian Bill of Rights - race, national origin, colour, religion, sex - should be retained as prohibited criteria for discrimination. Additional prohibited criteria might be considered, as for example, ethnic origin.
(b) Areas of activity where discrimination might be forbidden
(i) voting or the holding of public office.
(ii) employment - where it is suggested that there be added a qualification to the effect that distinctions based on a bona fide occupational qualification are not prohibited. In this way, possible difficulties concerning, for example, provincial legislation authorizing the hiring of teachers for denominational schools on the basis of their religious belief will be avoided;
(iii) admission to professions where admission is controlled by professional bodies acting under legislative authority;
(iv) education - special provisions will be required here to avoid inconsistencies with the guarantees of separate or denominational schools contained in section 93 of the B.N.A. Act and corresponding sections in other constitutional statutes relating to oth er provinces, for in som e cases these school guarantees authorize religious distin ctions in student admission policies. An exception to cover situations where a system of separate or denominational schools exists will suffice if there is added to it a provision for educational institutions run exclusively by religious bodies;
(v) use of public acomodation, facilities and services;
(vi) contracting with public agnecies;
(vii) acquiring of property and interests in property.
Admittedly, these anti-discrimination provisions might be considered to be embodied in the "equality before the law" clause. But just as it has been found desirable to detail certain aspects of due process", it may also be useful to detail certain aspects _of "equality".
Section 133 of the British North America Act, 1867 provides as follows:
Either the English or the French Language may be used by any Person in the Debates of the Houses of the P arliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses ; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.
Thus there already exists a constitutional guarauntee of the use of both languages in governmental processes, but this extends only to the legislature and courts of Quebec and to the Parliament and courts of Canada. In matters of education, it has been held that the guarantees of separate or denominational schools do not inciude any guarantee of the right to use either language as a medium of instruction.
It is submitted that these language guarantees be extended to other insititutions of government and to education as has been recommended. by the Royal Commission on Bilingualism and Biculturalism. These guarantees would prove effective, it is suggested, if incorporated into a constitutional bill of rights.
If expressed widely, the proposed rights would obviously give rise at the present time to serious practical problems of implementation. The problems are to a large degree overcome, however, through the employment of a formula based upon population proportions on a unit basis as recommended by the Royal Commission, and here endorsed.
The rights fall into two categories:
(a) Communication with governmental institutions - guaranteeing right of the individual to deal with agencies of government in either official language. It would be necessary to decide whether this should apply to all agencies - legislative, executive and judicial - and to all governments federal provincial and municipal.
(b) Education guaranteeing the right of the individual to education in institutions using as a medium of instruction the official language of his choice.
The kind of rights referred to here are those which seek to ensure some advantage to the individual and which require positive action by the state. The Universal Declaration of Human Rights, for ex- ample, included such rights as the right to work, the right to protec- tion against unemployment, the right to form and join trade unions, the right to social security, the right to rest and leisure, the right to an adequate standard of living, the right to education , and the right to participate in the cultural life of the community . The United Nations Covenant on Economic, Social and Cultural Rights adopted by the General Assembly in 1966 included and elaborated upon these rights.
The guarantee of such economic rights is desirable and should be an ultimate objective for Canada. There are, however, good reasons for putting aside this issue at this stage and proceeding with the protection of political, legal, egalitarian and linguistic rights. It might take considerable time to reach agreement on the rights to be guaranteed and on the feasibility of implementation. The United Nations recognized these problems when it prepared two separate Covenants on Human Rights - one on Civil and Political Rights and one on Economic, Social and Cultural Rights, thus giving nations an opportunity to accede to them one at a time.
It is therefore suggested that it is advisaable not to attempt to include economic rights in the constitutional bill of rights at this time.
The rights to be protected in the proposed constitutional bill fall broadly in to one of two types:
(i) rights which are expressed in terms of restrictions on the power of Parliament and the legislatures, and which require no enabling or implementing legislation in order to become effective (the rights described as 'political' and 'legal' fit into this category) , and
(ii) rights which in order to be fully effective must rely on the support of enabling or implementing legislation because they either anticipate sanctions for their enforcement or require positive government assistance, (the rights described as 'egalitarian' and 'linguistic' fit into this category).
In order not to be inconsistent with the present constitutional division of powers, an entrenched bill of rights must recognize that any required legislation falls within the competence of Parliament in some respects and within the competence of the provincial legislatures in others. And in order to be effective, the proposed bill must anticipate the varying rates of speed at which the various legislatures may feel able to introduce this legislation.
For these reasons it is suggested that the proposed constitutional bill of rights should assume a form which recognizes these variations, and accommodates them. The first portion of the bill could list the several political and legal rights. Two further parts could follow.
One would be concerned with egalitarian rights, the protection of which will require in most respects implementing legislation which does not now exist in all provinces. The further part would deal with linguistic rights as recommended by the Royal Commission on Bilingualism and Biculturalism.
A discussion about. implementa.tion of rights calls of necessity for a discussion as well of their limitation in time of emergency. On the occasion of war or other national crisis, western democracies have found it necessary to interfere drastically with normal private rights. No matter what the constitutional context, the courts have generally permitted this interference because they recognized the necessities of state involved. Some consideration should therefore be given at the outset to the extent to which the legislative authority of Parliament should be restored in times of emergency, and the means by which this should be accomplished.
One of three approaches might be employed: (i) some general exemption in the nature of the amendment to the War Measures Act enacted as part of the 1960 Canadian Bill of Rights; (ii) a precise specification of the several rights which may be infringed and, perhaps, to what extent (in this way the political and legal rights requiring abridgement could be dealt with while egalitarian and linguistic rights could continue unimpaired); (iii) no mention of any exemption, thus permitting the courts to determine what limitations are made necessary in times of crisis (many of the guarantees in the United States Bill of Rights are stated without qualification yet the American co urts have recognized that some of them may be limited in time of war).
(1) Canadian Bill of Rights, S. C. 1960, c. 44.
This Act declares the existence of various legal, egalitarian, and political rights and freedoms, and requires that all federal legislation be "construed and applied" so as not to infringe on these rights and freedoms.
(2) Canada Fair Employment Practices Act, S. C. 1952-53, c. 19.
This Act prohibits discrimination on the grounds of race, national origin or religion in employment or in trade union membership. It applies to businesses which are within Parliament's jurisdiction, including federal Crown corporations. Charitable organizations, and those non-profit bodies whose purpose is to foster the welfare of certain religious or racial groups, are exempted from its provisions. The Act provides machinery for an inquiry into complaints, for remedial orders to be made by the Minister which are binding on the parties, and for fines where the Act or the Minister's orders are violated. The convicting court may also make certain remedial orders.
(1) The Sex Disqualification Removal Act, R. S. A. 1955, c. 310.
This Act declares that no one shall be "disqualified by sex or marriage" from the exercise of a public function, from holding public office, from carrying on a profession or from admission to an incorporated society.
(2) The Human Rights Act, S. A. 1966, c. 39.
This Act prohibits discrimination on the grounds of race, religion, ancestry or place of origin in accommodation, employment, or trade union membership. The Act expressly binds the Crown in right of the province and all Crown agencies. It exempts organizations similar to those exempted in the federal Fair Employment Practices Act. The enforcement provisions are similar to the federal statute-an inquiry, Minister's remedial orders, prosecution if necessary, and remedial orders by the convicting court. The Minister is also authorized here to apply to the Supreme Court of Alberta for an injunction after a conviction to prevent continuation of the contravention.
C. BRITISH COLUMBIA
(1) Fair Employment Practices Act, R. S. B. C. 1960, c. 137, as amended by S. B. C. 1964, c. 19.
This Act prohibits discrimination in employment and trade union mem- bership on grounds similar to those in the federal and Alberta statutes, and in addition on the grounds of age (more particularly, on the grounds that a person is between the ages of 45 and 65). Similar exemptions are provided, and similar enforcement procedures except that there is no injunction provided for and the convicting court is not empowered to make remedial orders.
(2) Sex Disqualification Removal Act, R. S. B. C. 1960, c. 352. This Act is similar to the Alberta statute of the same name.
(1) The Fair Employment Practices Act, R .S. M. 1954, c. 81, as amended by S. M. 1956, c. 20.
This Act is very similar to the federal statute of the same name and to the employment provisions of the Alberta Human Rights Act. It expressly binds the Crown.
(2) The Fair Accommodation Practices Act, S. M. 1960, c. 14.
This Act is similar to provisions respecting accommodation of The Human Rights Act of Alberta. Apart from the usual remedies the Minister can, after a conviction under the Act, apply for an injunction to restrain the convicted person from further contraventions. The Crown is bound by the Act.
E. NEW BRUNSWICK
(1) Fair Employment Pmctices Act, S. N. B. 1956, c. 9.
This Act is similar to federal and other provincial fair employment practices legislation. There is no provision for injunctions. The Act does nop appear to bind the Crown.
(2) Fair Accommodation Practices Act, S. N. B. 1959, c. 6.
This Act is similar to fair accommodation laws of other provinces such as Alberta or Manitoba. It makes provision for an injunction after conviction. It does not appear to bind the Crown.
This province does not appear to have any comparable legislation.
G. NOVA SCOTIA
(1) Human Rights Act, S.N.S. 1963, c. 5.
This Act, replacing three earlier statutes, consolidates anti-discrimination legislation. In scope and terms it is very similar to The Human Rights Act of Alberta. It also includes a requirement of equal pay for both sexes (a matter dealt with in separate legislation in most other provinces).
(1) The Ontario fhwwn Rights Code 1961-62, S.O. 1961-62, c. 93, as amended by S.O. 1965, c. 85.
This Act consolidates and amends several pre-existing provisions. It is essentially an anti-discrimination law with respect to employment and aocommodation, with provisions similar to those described in the Alberta and Nova Scotia Human Rights Act. Two differences may be noted. First, the Ontario Act has a general prohibition (not confined to employment or accommodation practices) against publication of any notice, sign, symbol, etc., indicating discrimination or an intention to discriminate on the basis of race, religion, nationality or origin. Secondly, there is a Human Rights Commission provided which, apart from being charged with enforcing the Code, is also expected to promote the concept of equality regardless of race, religion, etc., through educational programmes and otherwise.
(2) The Age Discrimination Act, 1966 S.O. 1966, c. 3.
This Act forbids discrimination in hiring, retention, or promotion of persons because they are between 40 and 65 years of age. Machinery and sanctions similar to those under The Ontario Human Rights Code, 1961-62 are provided. The Human Rights Commission is responsible for its administration.
(3) The Freedom of Worship Act, 14-15 Vict., c. 175 (Province of Canada).
This Act, originally passed in 1852, has not been carried in the revised statutes of Ontario since 1897. It declares that the free exercise of religion without discrimination or preference is allowed to all Her Majesty's subjects within the province. By section 129 of the B.N.A. Act this pre-Confederation law continues.
I. PRINCE EDWARD ISLAND
Apart from the Equal Pay Act, S.P.E.I. 1959, c. 11, this province does not appear to have any comparable legislation.
(1) Freedom of Worship Act, R.S.Q. 1964, c. 301.
This Act repeats with modifications the provisions of the pre-Confederation Freedom of Worship Act referred to in connection with Ontario. As amended (by S.Q. 1953-54, c. 15) it provides that the right of free exercise of religion does not include the distribution in public places of literature containing abusive or insulting attacks against the religion of any of the province's population. Public speeches or the broadcasting of speeches including such attacks are also excepted from the meaning of free exercise of religion.
(2) Employment Discrimination Act, R.S.Q. 1964, c. 142.
This Act is similar to other provincial fair employment practices legislation. It defines "discrimination" more precisely and specifies that a "distinction ... in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination". Provision is made for an inquiry, but no power is given to the Minister to make a remedial order. Prosecution is the only judicial remedy. The Act binds the Crown.
(3) Hotels Act, RS .Q. 1964, c. 205. This Act forbids the keepers of hotels, restaurants or camping grounds from discriminating, with respect to lodging, food, or other public services offered, against any person on the basis of race, belief, nationality or origin. Penalties are provided for the violation of the Act, and the offendor's permit might not be renewed in case of a violation.
(1) The Saskatchewan Bill of Rights Act, R S.S. 1965, c. 378.
This Act declares the existence of political rights (including freedom of speech, religion, assembly, and the right to require a provincial election at leas,t once every 5 years), legal rights, and egalitarian rights (including, without discrimination on the basis of race, religion, ethnic or national origin, the right to buy or rent real property, the right to engage in occupations or professions, and t he right to education). Penalties are pro- vided against anyone who restricts another in the enjoyment of these rights, and such a person may also be enj oined from such restriction. The Act binds the Crown.
(2) The Fair Employment Practices Act, RS.S. 1965, c. 293.
This Act follows the patterns of the federal and other provincial fair employment practices laws. It provides fo r an inquiry, Minister's orders, and prosecutions, but not for injunctions. It is binding on the Crown.
(3) The Fair Accommodation Practices Act, RS.S. 1965, c. 379.
This Act follows the usual pattern of fair accommodation practices laws. No provision is made, after an inquiry, for a Minister's remedial order. There is power in the Minister to seek an injunction against an offend or after conviction. The Act binds the Crown.
L. NORTHWEST TERRITORIES
(1) Fair Practices Ordinance, N.W.T.O. 1966, c. 5.
This Ordinance follows the familiar provincial pattern in prohibiting discrimination in both employment and accommodation. Similar machinery is provided for enforcement. No injunction is provided, but in case of a prosecution the convicting court can, in employment cases, make remedial orders. As in the Human Rights Act of Nova Scotia, it also contains a requirement of equal pay for both sexes. The ordinance does not appear to bind the Crown.
M. YUKON TERRITORY
(1) Fair Practices Ordinance, Y.O. 1963 (2nd Sess.), c. 3.
This Ordinance is very similar to the Northwest Territories ordinance. It contains no provision with respect to equal pay for both sexes. It does not appear to be binding on the Crown.
Last updated: 5 November, 2000.
William F. Maton