H. The Drafting of the Charter

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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The drafting of the Charter was a difficult affair involving initial opposition by most provinces to the very idea of a charter; challenges by the provinces to the constitutionality of asking the British Parliament to amend the constitution without unanimous provincial consent; and the eventual refusal of one province, Quebec, to agree to the enactment of the Charter. What is most significant in terms of understanding the Charter are a number of changes made between October 1980 and the eventual agreement that was reached in November 1981 among all governments except Quebec to enact the Charter, as well as a domestic amending formula to govern future changes to the constitution. During this time, a Joint Committee of Parliament heard from many witnesses representing civil liberties and women’s groups, defence lawyers and prosecutors, the police, and others. Many of these groups were critical of the October 1980 version of the Charter. That draft had been weakened in an unsuccessful attempt to win provincial consent. The critics feared that the October 1980 version of the Charter would produce weak protection of rights and freedoms, as had the Canadian Bill of Rights. The federal government accepted many of these criticisms and introduced some fundamental changes to strengthen the Charter.

Section 1 of the Charter is perhaps its most important provision. In October 1980, it provided that the rights and freedoms would be "subject only to such reasonable limits as are generally acceptable in a free and democratic society with a parliamentary system of government." Some critics coined this the "Mack Truck clause" on the basis that the traditions of parliamentary supremacy, examined above, would allow governments to drive a truck through guaranteed rights and freedoms.36The federal government accepted this argument, and section 1 was changed to provide new requirements that any reasonable limit on Charter rights be "prescribed by law" and be "demonstrably justified in a free and democratic society."

Many of the legal rights of the Charter were also strengthened. For example, the October 1980 draft provided that "everyone has the right not to be subjected to search or seizure except on grounds, and in ac-

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cordance with procedures, established by law." This guarantee that searches and seizures would be conducted in accordance with laws was changed to the more substantive guarantee now found in section 8 of the Charter of "the...

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