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CANADIAN BILL OF RIGHTS

(1960, c. 44)

    Note - This Act is printed as amended by SC 1970-71-72, c38s29 and SC 1985 c26 s105.

__________________________


An Act for the Recognition and Protection of Human
Rights and Fundamental Freedoms

[Assented to 10th August 1960]

Preamble

    The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;
    Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;
    And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:
    Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

PART I
BILL OF RIGHTS
 
1. Recognition and declaration of rights and freedoms - It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
 (a) 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;
 (b) the right of the individual to equality before the law and the protection of the law;
 (c) freedom of religion;
 (d) freedom of speech;
 (e) freedom of assembly and association; and
 (f) freedom of the press.
 
Judicial Consideration -
 
s1(a)
 
R v Roestad - [1972] 1 OR 814,5 CCC (2d) 564, 19 CRNS 190 (Ont Co Ct)
  - The discretion in the Crown in selecting a forum that might result in depriving an accused of the right to a jury trial when the Crown is seeking preventative detention for a dangerous sexual offender, does not constitute a violation of the "due process of law" provision.
 
R v Berry (and seven others) - (1975), 24 CCC (2d) 66 (BC Prov Ct)
  - The Canadian Bill of Rights does not apply to all persons except prisoners or all laws of Canada except the Penitentiary Act. In the preamble of that Act there is an acknowledgement of "the dignity and worth of the human person", The provisions of s1(a) of the Bill provide the individual with the right to "liberty, security of the person" and "the right not to be deprived thereof except by due process of law". This means that there must be some lawful authority vested in penitentiary officials to further reduce the prisoner's liberty (i.e. ordering him to shave off his beard) and to authorize them to effect the security of his person (i.e. forceably shaving his beard).
 
Curr v The Queen - [1972] SCR 889, 7 CCC (2d) 181, 26 DLR (3d) 603,18 CRNS 281
  - It is not necessary for discrimination by reason of race, national origin, colour, religion or sex to exist for this section to operate. A law of Canada which does not discriminate in that manner may still offend this section if it violates any of the provisions of paragraphs (a)-2(t), As to the meaning of "due process of law" in s1(a) per Laskin, J (as he then was), concurred in by six other members of the court, "I am unable to appreciate what more can be read into s1(a) from a procedural standpoint than is already comprehended by s2(e) (a fair hearing in accordance with the principles of fundamental justice) and by s2(t) (a fair and public hearing by an independent impartial tribunal)"."Assuming that "except by due process of law" provides a means of controlling substantive federal legislation -..,- compelling reasons ought to be advanced to justify the court ... to employ a statutory (as contrasted with a constitutional) jurisdiction to deny operative effect to a substantive measure duly enacted by a Parliament constitutionally competent to do so and exercising its powers in accordance with the tenets of responsible government, which underlie the discharge of legislative authority under the British North America Act, 1867, Those reasons must relate to objective and manageable standards by which a court should be guided if scope is to be found in s1(a) due process to silence otherwise competent federal legislation," Per Ritchie, J (concurred in by Fauteux, CJC.) "The phrase 'due process of law' as used in s1(a) is to be construed as meaning 'according to the legal processes recognized by Parliament and the courts in Canada".
 
White and Birch v The Queen - Unreported, May 10, 1976 (FCTD)
  - A motion for an interlocutory injunction to suspend the imposition of administrative dissociation (solitary confinement) was dismissed as being a purely administrative decision to which section 1 (a) of the Canadian Bill of Rights did not apply following the judgment in McCann et al v The Queen [1975] 1 FC 570,29 CCC (2d) 337, 68 DLR (3d) 661, (FCTD). In the McCann case, the plaintiff prisoners were successful in obtaining a declaration that confinement in the solitary confinement unit at the British Columbia Penitentiary at New Westminster, B.C. amounted to "cruel and unusual punishment". However, Hield, J. declined to find that the institutional head, in disassociating a prisoner pursuant to Regulation 2.30(1)(a) was required to act in a judicial or quasi-judicial manner (due process) and held that s1(a) of the Bill of Rights did not apply so as to impose these procedural requirements of due process in the circumstances.
 
Editorial Note - There are number of cases which appear to hold that the Bill of Rights does not apply to purely administrative decisions notwithstanding the fact that there is nothing in the Bill of Rights itself to indicate that it only applies to judicial or quasi-judicial decisions. There previous decisions seem to proceed on the assumption that the court had no power to interfere with purely administrative decisions. However, the recent decision of the Supreme Court of Canada in Martineau v Matsqui Institution Disciplinary Board (Unreported, December 13,1979 (SCC), has changed the law in this respect and the courts can now review purely administrative decisions. Further, there are other cases which hold that the Bill of Rights clearly applies to everyone including prisoners. See for example R v Berry (and seven others) (1975) 24 CCC (2d) 66, and R v Institutional Head of Beaver Creek Correctional Camp; ex parte McCaud, [1969] 1 CCC 371, [1969] 1 OR 373 (CA).
 
s1(b)
 
R v Roestad - [1972] 1 OR 814,5 CCC (2d) 564, 19 CRNS 190 (Ont Co Ct)
  - The concept of equality before the law is not violated by some groups being treated differently or more harshly than others as a result of the exercise of the Crown's discretion in choosing a particular forum or matter of proceeding as authorized by existing legislation. The concept of equality before the law means a fair trial for every person charged in the courts of this country with no deprivation of his right to make full answer as defence.
 
R v Natrall - [1973] 1 WWR 608, 9 CCC (2d) 390,20 CANS 265, 32 DLR (3d) 241 (BCCA)
  - The routine imposition of imprisonment in default of payment of a fine would result in inequality before the law, contrary to the provisions of s1(b) of the Canadian Bill of Rights to the extent that rich and poor offenders would not receive "equality before the law". However, when a reasonable enquiry as to the ability to pay is undertaken by the sentencing authority, imprisonment for failure to pay a fine is a valid sentence and does not offend the Bill of Rights.
 
R v Hatchwell - [1974] 1 WWR 307, (1974),14 CCC (2d) 556 (BCCA)
  - The provisions of the Criminal Code authorizing preventative detention for life for habitual criminals does not offend the "equality before the law" proscription in s1(b) of the Canadian Bill of Rights. These sections authorize the imposition of a special sentence only upon those having a special status and do not apply to those without that special status.
 
R v Burnshine - [1975] 1 SCR 693, [1974] 4 WWR 49, 25 CANS 271,15 CCC (2d) 505, 2 NR 53, 44 DLR (3d) 584
  - The provisions of s150 of the Prison and Reformatories Act, RSC 1970, c P-21, which authorize a court in British Columbia to impose an indeterminate sentence upon a person within a specific age group even though such a sentence could not be imposed by a court in other provinces in Canada except Ontario and upon persons not within the age group, does not deny "equality before the law". The concept of "equality before the law" does not include the right of each individual to insist that no statute could be enacted which did not have application to everyone and in all areas of Canada. Such a right would have involved a substantial impairment of the sovereignty of Parliament in the exercise of its legislative powers under s91 of the British North America Act, 1867, and could only have been created by constitutional amendment. In any event, s150 does not impose harsher punishment upon of- fenders in British Columbia in the particular age group but seeks to reform and benefit such persons. It is not the function of the court under the Bill of Rights to prevent the operation of a federal enactment designed for this purpose on the grounds that it applies only to one class of persons or to a particular area.
 
Bruce and Meadley v Reynett et al - [1979] 4 WWR 408 (FCTD)
  - Walsh, J. ruled that in the absence of something in the Penitentiaries Act or Regulations specifically providing for the marriage of prisoners and evidence that these provisions were not being complied with or applied fairly, a prisoner could not contend that he was being denied "equality before the law" when denied permission to marry, notwithstanding the absence of any prohibition against prisoners marrying in the federal or provincial Marriage Acts.
 
Bruce and Meadley v Commissioner of Corrections - (1979), 10 CR (3d) 166 (FCTD)
  - Collier, J. held that there would be no denial of "equality before the law" if the applicant Bruce was transferred from British Columbia to Ontario even though he had criminal charges pending and two appeals pending in the Courts in British Columbia, one of which might be rendered moot by his transfer and despite the fact that the transfer would preclude him from having quick and ready access to oral advice and assistance from counsel.
 
Weatherall v AG Canada et al; Conway v The Queen; Spearman v Disciplinary Tribunal, Collins Bay Penitentiary et al - (1989) 59 CR (3d) 247 (FCTD)
  - Section 1(b) of the Canadian Bill of Rights is not intended to prescribe inequality of trivial intrusions into human privacy any more than is s15 of the Charter. It is well settled that para1(b) of the Canadian Bill of Rights is not contravened if there is a "valid federal objective" to the law which makes such distinctions. Cross gender frisk searching may impose a disadvantage on male prisoners which is not imposed on female prisoners in federal institutions but this result flows from the affirmative action program which placed women officers in male institutions and this was in furtherance of a "valid federal objective" to provide equal opportunities for women and employment in the federal public service.
 
s1(e)
 
In Re Culhane - [1977] 1 WCB 542 (FCTD)
  - Collier, J. held that the Canadian Bill of Rights could not be applied to an administrative decision of an institutional head cancelling the applicant's visiting privileges.
 
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO-CLC and Guelph Beef Centre Inc and Ministry of Correctional Services - Ontario Labour Relations Board File No. 1743-76-R, March 29, 1977
  - Prisoners are not specifically excluded from the purview of the Ontario Labour Relations Act nor by any other legislation. Therefore, so long as they are employees they are covered by the Act and may be certified as a collective bargaining unit. In the circumstances, the prisoners were working outside the prison in a normal commercial operation and the normal criteria constituting an employment relationship existed.
 
2. Construction of law - Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
 (a) authorize or effect the arbitrary detention, imprisonment or exile of any person;
 (b) impose or authorize the imposition of cruel and unusual treatment or punishment;
 (c) 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 habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful;
 (d) 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 other constitutional safeguards;
 (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
 (f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or
 (g) deprive a person of the right to the 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 understand or speak the language in which such proceedings are conducted.
 
Judicial Consideration -
 
R. v. Bruce, Wilson and Lucas - (1977), 36 C.C.C. (2d) 158 (B.C.S.C.)
  - Section 2, when dealing with s.1, rights and freedoms, speaks of the law as being "construed and applied". Later, when referring to the particulars specified in paragraphs (a) to (g) of s.2 the words used are "construed or applied". Although "and" is used in one place and "or" in the next, the use of the verb "applied" is at least a warning ...that something more than the construing of a statute is involved ... Considerations of the application of a law apparently can encompass a broader scope than the question of construing a law.
 
s2(a)
 
Ex Parte Hilson - (1973), 12 C.C.C. (2d) 343 (Ont. H.C.)
 

- The provisions of the Parole Act authorizing the forfeiture of statutory remission without natural justice safe- guards does not authorize "arbitrary detention or imprisonment" in contravention of the Canadian Bill of Rights because the Parole Act clearly contemplates that the Parole Board need not hold a hearing in revoking parole and shows Parliament's intention that natural justice safeguards ought not to apply in the circumstances.

 
Editorial Note - The Parole Act and Regulations have since been amended to provide natural justice safeguards and the Supreme Court of Canada has now decided in Martineau v. Matsqui Institution Disciplinary Board ((1979),50 C.C.C. (2d) 353, 30 N.R. 119, 106 D.L.R. (3d) 385.) that there is a duty to act fairly in making an administrative decision that affects the rights, privileges, or interests of an individual and a failure to comply with this duty may result in the purely administrative decision being reviewed in the Federal- Court Trial Division on certiorari.
 
Ex Parte Kleinys - (1965), 3 C.C.C. 102 (B.C.S.C.)
  - A sentence is not "arbitrary" just because it is an indeterminate sentence where the person is held at the pleasure of some authorities.
 
R v Roestad - [1972] 1 OR 814,5 CCC (2d) 564, 19 CRNS 190 (Ont Co Ct)
  - The imposition of preventative detention on persons classified as dangerous sexual offenders does not amount to "arbitrary detention or imprisonment" contrary to the Canadian Bill of Rights.
 
R. v. Hatchwell - [1974] 1 W.W.R. 307,14 C.C.C. (2d) 556 (B.C.C.A.)
  - A sentence of preventative detention imposed upon a person classified as a habitual criminal does not amount to "arbitrary detention or imprisonment" contrary to the provisions of the Canadian Bill of Rights.
 
Alex v. The Queen - Unreported, May 8 1979, No. C790657, Vancouver (S.C.)
  - The continuation of a term of imprisonment (preventative detention) under a repealed statute (the sections of the Code providing for the classification of persons as habitual criminals) does not, in view of the expressed provisions of the Interpretation Act, R.S.C. 1970, c. 1-23, ss. 35 and 36, constitute "arbitrary detention or imprisonment" contrary to s.2(a) of the Canadian Bill of Rights.
 
Ex Parte Quocksister - (1975),27 C.C.C. (2d) 74 (B.C.C.A.)
  - The denial of statutory remission for time served after suspension of parole but before cancellation of the suspension or revocation of parole, does not amount to "arbitrary detention or imprisonment" contrary to section 2(a) of the Canadian Bill of Rights. The period of detention while under suspension cannot be considered arbitrary because it is only for the period during which necessary inquiries and review by the Board are completed. Thereafter, the Board must act "forthwith" in compliance with s.16(4) of the Parole Act.
 
Ex Parte Lambert - (1975), 27 C.C.C. (2d) 568 (Ont. H.C.)
  - The fact that a parolee upon revokation of his parole (mandatory supervision) has to re-serve in prison the time spent while out on parole (mandatory supervision) in effect increasing his sentence without a hearing, does not amount to "arbitrary detention or imprisonment" because the specific words of s.20 of the Parole Act so provides and must be given effect to even if they seem unduly harsh.
 
Editorial Note - The Parole Act and Regulations have since been amended to provide for hearings after suspension prior to revocation or parole or mandatory supervision.
 
s2(b)
 
Magda v. The Queen - [1964] S.C.R. 72, 42 D.L.R. (2d) 330
  - Because the Bill of Rights was not in force at the time the applicant was imprisoned as a prisoner of war alleging cruel and unusual treatment or punishment and further, pre-existing rights that the Bill of Rights recognizes do not include the right to sue the Crown in tort except as specifically provided by statute.
 
R. v. Buckler - [1970] 2 C.R. 614, [1970] 2 C.C.C. 4 (Prov. Ct.)
  - The imposition of a sentence of preventative detention for an indeterminate period of time upon a per- son classified as a habitual criminal does not amount to cruel and unusual treatment or punishment contrary to the provisions of the Canadian Bill of Rights. To offend section 2(b) of the Canadian Bill of Rights, the treatment or punishment must be both cruel and unusual. Unless imprisonment itself as a means of protecting the public and of reforming the individual is to be regarded as cruel, a sentence of imprisonment that is for an indeterminate period cannot properly be described as cruel. The imprisonment is imposed after due process and is subject to annual review. Further, although this kind of punishment or treatment is infrequently applied, this does not mean that it is unusual. The word "punishment" in this context means the retributive or exemplary penalty imposed upon a transgressor to deter him and others from repeating or committing a similar offence. The word "treatment" appears as an alternative to "punishment" and must be intended to cover a broader aspect of criminal procedures, including measures designed to reform and re- habilitate the offender, such as probation, prison training programs and parole, or to incapacitate him for a long time with the single purpose of denying him an opportunity to inflict further injury or loss upon the public.
 
R. v. Miller and Cockriell - [1975]6 W.W.R.1, 33 C.R.N.S.129, 24 C.C.C. (2d) 401 , 63 D.L.R. (3d) 193 (B.C.C.A.), affirmed [1976] 2 S.C.R. 680, 38 C.R.N.S. 139, [1976] 5 W.W.R. 711, 31 C.C.C. (2d) 177, 70 D.L.R. (3d) 324
  - The provisions of the Criminal Code relating to murder punishable by death were not inoperative as being "cruel and unusual treatment or punishment". The words "cruel and unusual" are to be read conjunctively and refer to "treatment or punishment" which is both cruel and unusual. Per Laskin, C.J.: "In its present formulation, s.2(b) is in the language of the English Bill of Rights of 1688 and of the Eighth Amendment to the American Constitution. Although the words have application to methods of punishment, whether the punishment be death or not, and there are indications that this was what they were aimed at when originally adopted in England and in the United States, they cannot reasonably be limited to methods, which at one time in history included decapitation, disemboweling and drawing and quartering. It would be patent to me for example, that death as a mandatory penalty today for theft would be offensive to s.2(b) Harshness of punishment and its severity in consequence are relative to the offence involved but, that being said, there may still be a question (to which history too may be called in aid of its resolution) whether the punishment prescribed is so excessive as to outrage standards of decency. This is not a precise formula for s.2(b) but I doubt whether a more precise one can be found."
 
R v Roestad - [1972] 1 OR 814,5 CCC (2d) 564, 19 CRNS 190 (Ont Co Ct)
  - The imposition of preventative detention for an indeterminate period on persons classified as dangerous sexual offenders is not "cruel" because the purpose is to protect the public and there is an annual review of the prisoner's progress. To offend this section, the punishment must be both cruel and also unusual. The word "cruel" bears the connotation of physical pain or degradation but is not confined to same. Whether punishment is cruel depends upon the object of the punishment as set out in the legislation.
 
R. v. Hatchwell - [1974] 1 W.W.R. 307, 14 C.C.C. (2d) 556 (B.C.C.A.)
  - A sentence of preventative detention for an indeterminate period imposed upon a person classified as a habitual criminal does not amount to cruel and unusual treatment or punishment contrary to the provisions of the Canadian Bill of Rights.
 
Editorial Note - This case was reversed by the Supreme Court of Canada on other grounds, [1974] 1 S.C.R. 39.
 
R. v. Shand - (1976), 13 C.R. (2d) 65, 35 C.R.N.S. 202, 30 C.C.C. (2d) 23, 70 D.L.R. (3d) 395 (C.A.)
  - While disproportion between a sentence and the seriousness of the offence for which it is imposed is relevant to what is "cruel and unusual treatment or punishment" contrary to the Canadian Bill of Rights, a seven year minimum sentence for importing a narcotic (cocaine) is not so disproportionate as to offend this section. Further, the removal of judicial discretion to sentence for a term of less than seven years does not deny "due process" nor is it unconstitutional.
 
McGann et al v. The Queen - [1976] 1 F.G. 570, 29 G.G.G. (2d) 337, 68 D.L.R. (3d) 661 (F.G.T.D.)
  - The prisoner plaintiffs were successful in establishing that the conditions and circumstances of the solitary confinement unit at the British Columbia Penitentiary in New Westminster, B.C. amounted to the imposition of "cruel and unusual" treatment or punishment. The treatment or punishment was "unusual" as it served no positive penal purpose. Even if it did serve some positive penal purpose it was still "cruel and unusual" because it was not in accord with public standards of decency and propriety since it was unnecessary because of the existence of adequate alternatives. Even if the word "unusual" is given its ordinary and natural meaning (not often occurring or observed, difference from what is usual; out of common, remarkable, exceptional) at least some of the treatment in the solitary confinement unit can still be characterized as "unusual". The length of time that the plaintiffs spent in solitary was, of itself, sufficient to categorize the treatment of them as "unusual". The plaintiffs successfully obtained a declaration but were denied a further order compelling compliance with the declaration and other relief.
 
R. v. Bruce, Wilson and Lucas - (1977), 36 C.C.C. (2d) 158 (B.C.S.C.)
  - It was ruled during the course of the trial before a judge and jury on a charge of extortion arising out of a hostage taking incident at the British Columbia Penitentiary that the application of the Canadian Bill of Rights in the context of the defences raised (reasonable justification or excuse and necessity) was not relevant to an issue the jury was called upon to decide. In other words, the judge ruled that the question of whether or not the accused had been or were about to be subjected to "cruel and unusual treatment or punishment" contrary to the Canadian Bill of Rights was a question of law for him alone to decide after hearing evidence in the absence of the jury, as opposed to a question of fact for the jury to decide. After hearing expert evidence in the absence of the jury, Toy, J. declined to find that prisoners in general or specifically any of the three accused had had imposed upon them "cruel and unusual punishment or treatment". To arrive at this ruling, Toy, J. expressly disagreed with the findings of Heald, J. in McCann, supra, in which one of the accused was a plaintiff to whom pertained the same conditions and circumstances during substantially the same time period. The defences of "reasonable justification or excuse" and "necessity" were still left to the jury there being evidence to support same.
 
Editorial Note - This case is still on appeal.
 
Magrath v. The Queen - (1977), 38 C.C.C. (2d) 67 (F.C.T.D.)
  - The plaintiff, along with other claims for relief, sought a declaration that he had been subjected to "cruel and unusual treatment or punishment" by his transfer from a minimum security institution to a maximum security institution when he was not a security risk and alternatives existed, and when shortly after his arrival at the maximum security institution a riot occurred resulting in his being held under poor conditions in the gymnasium of that prison (the British Columbia Penitentiary). It was held that the placing of the plaintiff in that institution with less desirable surroundings, fewer amenities and lesser privileges did not, in the circumstances, fall within the strictures against "cruel and unusual punishment". The occurrence of a serious riot did not strengthen the plaintiff's case.
 
    For further information on the origins and meanings of the terms in this section see also B. Welling and LA. Hipfner "Cruel and Unusual?: Capital Punishment in Canada" (1976), 26 University of Toronto Law Journal 55; A.F. Granucci "Nor Cruel and Unusual Punishment Inflicted; the Original Meaning" (1969), 57 California Law Review 839; W.S. Tarnopolsky "Just Desserts or Cruel and Unusual Treatment or Punishment? Where do We Look for Guidance?" (1978), 10 Ottawa Law Review 1; S. Berger "The Application of the Cruel and Unusual Punishment Clause Under the Canadian Bill of Rights" (1978), 24 McGill Law Journal 161; and more specifically with respect to the imposition of solitary confinement see T.B. Benjamin and K. Lux "Solitary Confinement as Psychological Punishment" (1977), 13 California Western Law Review 263.
 
s2(c)
 
Mitchell v. The Queen - [1976] 2 S.C.R. 570, [1976] 1 W.W.R. 577, 24 C.C.C. (2d) 241, 6 N.R. 389,61 D.L.R. (3d) 77
  - It was held among other things, that the rights provided by this section had been met in the circumstances of this case where the prisoner's parole was suspended and then revoked and he was aware of the fact that the reason for his arrest and detention was because of the suspension and subsequent revocation of his parole. The board is not required to disclose its reasons for its decision to suspend and revoke parole. Per Laskin, C.J. (Spence and Dickson, J.J. concurring): The reasons for the suspension must be provided if this section is to have more than an empty meaning.
 
Re Armstrong and Whitehead - [1973] 2 O.R. 495, 11 C.C.C. (2d) 327 (C. A.)
  - The applicants sought the right to counsel in disciplinary proceedings in an Ontario provincial correctional facility. The court ruled that the inquiry was not in the nature of a judicial or quasi-judicial hearing at which the inmate was entitled to counsel and that in their opinion he was not so entitled.
 
Re McLeod and Maksymowich (also reported as Re McLeod's Certiorari Application) - (1973), 12 C.C.C. (2d) 353, [1973] 5 W.W.R. 129 (N.W.T.S.C.)
  - On an application for certiorari to quash disciplinary proceedings held under the North- west Territories Gaol Regulation, the application was granted but on the question of the right to counsel in such proceedings the court ruled that although an accused has a right to counsel where he runs the risk of serious property loss or damage to his reputation or loss of liberty the right cannot be extended to a matter where the issue is merely one of the inner discipline of an institution to which the accused had been sent following a trial at which he was afforded the full assistance of counsel. The court went on to say the right to counsel in s.2(cXii) of the Canadian Bill of Rights is qualified by the phrase "who has been arrested or detained". The term "arrest" is defined as "the restraining of the liberty of a man's person in order to compel obedience to the order of a court of justice or to prevent the commission of a crime or to ensure that person charged or suspected of a crime may be forthcoming to answer it". There is nothing in the Bill of Rights to suggest the terms "arrested or detained" have been used in any sense to suggest an enlargement of the ordinary meaning which has been used for so long. Nevertheless, the court found that in the circumstances the warden was required to act judicially because he was purporting to interfere with the prisoner's statutory remission and was therefore affecting his liberty.
 
Editorial Note - The court followed the principles laid down in the case of R. v. Institutional Head of Beaver Creek Correctional Camp; ex parte McCaud (1969), 1 C.C.C. 371 (Ont. C.A.), which held that the Bill of Rights did apply to circumstances where the prisoner's "rights or obligations" were being affected. Both of these cases have been modified by the recent decision of the Supreme Court of Canada in Martineau v. Matsqui Institution Disciplinary Board (1979), 30 N.R. 119, 106 D.L.R. (3d) 385, 50 C.C.C. (2d) 353, which should be referred to on the Question of "right to counsel", in particular the judgment of Pigeon, J. concurred in by five other members of the court and citing with approval the decision of the United Kingdom Court of Appeal in Fraser v. Mudge, [1975] 1 W.L.R. 1132, [1975] 3 All E.R. 78, in which that court held that the prisoner is not entitled to counsel in prison disciplinary matters.
 
Re Faid and The Queen - (1979), 44 C.C.C. (2d) 62 (Alta. S.C.)
  - The interview facilities at the Fort Saskatchewan Correctional Institution which contained a glass wall between counsel and his client with a wire mesh covering the speaking aperture, a telephone, and a thin slot for the passage of papers, were held inadequate for the exercise of the right to counsel under s.2(cXii) of the Canadian Bill of Rights and the court ordered that the applicant be provided with facilities sufficient to allow him to receive visits from his counsel with a view to the preparation of his defence to criminal charges laid against him and that such facilities be provided within sight but not within hearing of any person. In order to facilitate the effective communication including the free passage of written material between counsel and the applicant it was ordered that no glass or metal barrier be interposed between the applicant and his counsel.
 
Mitchell v. The Queen - [1976] 2 S.C.R. 570, [1976] 1 W.W.R. 577,24 C.C.C. (2d) 241, 6 N.R. 389,61 D.L.R. (3d) 77
  - On an application for habeas corpus it appeared that a majority of the court considered it appropriate to go behind the warrants of committal in considering the matter but the majority also concluded that there was no difference between certiorari and certiorari in aid of habeas corpus and that there is no jurisdiction in the provincial superior courts in relation to certiorari over federal boards or tribunals such jurisdiction having been transferred to the Federal Court under the Federal Courts Act. The minority took the position that the right to habeas corpus guaranteed by s.2(c)(iii) of the Canadian Bill of Rights included certiorari in aid to make the remedy an effective one.
 
s2(d)
 
Re McLeod and Maksymowich (also reported as Re McLeod's Certiorari Application) - [1973] 5 W.W.R. 129, 12 C.C.C. (2d) 353, (N.W.T.S.C.)
  - It was held that s.2(d) of the Bill of Rights did not apply in prison Disciplinary Board proceedings under the Northwest Territories Gaol Regulations so as to entitle the prisoner to counsel because the prisoner was not being "compelled to give evidence".
 
s2(e)
 
Lowry and Lepper v. The Queen - [1972] 5 W.W.R. 229,19 C.R.N.S. 315, 6 C.C.C. (2d) 531, 26 D.L.R. (3d) 224 (S.C. C.)
  - The rights guaranteed by this paragraph relate back to the rights guaranteed by s.1 of the Bill of Rights and accordingly include the right to a fair hearing in criminal proceedings. Therefore, before a sentence is passed by any court the accused has a right to be heard and should be given an opportunity to speak to sentence.
 
Ex Parte Hilson - (1973), 12 C.C.C. (2d) 343 (Ont. H.C.)
  - Provisions of s.2(e) of the Bill of Rights do not apply to the question of the revocation of parole which is a decision in the discretion of the Parole Board as an administrative matter and is not in any way a judicial determination notwithstanding that the parolee forfeits statutory remission upon revocation.
 
Editorial Note - The court followed the early decision of the Supreme Court of Canada in Ex Parte McCaud, infra. All of these cases should now be read subject to the amendments to the Parole Act and Regulations providing for hearings and an entitlement to show the case against him and reasons for decisions.
 
Mitchell v. The Queen - [1976] 2 S.C.R. 570, [1976] 1 W.W.R. 577, 24 C.C.C. (2d) 241, 6 N.R. 389,61 D.L.R. (3d) 77
  - The provisions of section 2(e) of the Canadian Bill of Rights do not apply to the revocation of parole.
 
Re Nicholson and the National Parole Board - [1975] F.C. 478 (T.D.)
  - Following Ex Parte McCaud, infra, and Howarth v. National Parole Board (1975), 18 C.C.C. (2d) 385, the liberty of an inmate is a privilege extended to him by our society through the administrative mechanisms of the National Parole Board and not a right to be enjoyed by him as a member of our society. Hence, his deprivation of that liberty through the same mechanisms is not impeded by any of the safeguards that stand between the individual and the collective will of society to interfere with his rights and consequently s.2(e) of the Bill of Rights does not apply because "rights" are not affected but only "privileges".
 
Ex Parte McCaud - [1965] 1 C.C.C. 168,43 C.R. 252 affirmed [1965], 1 C.C.C. 170n, 43 C.R. 256 (S.C.C.)
  - The provisions of s.2(e) of the Canadian Bill of Rights do not apply to the question of the revocation of parole under the provisions of the Parole Act which is a matter within the discretion of the Parole Board as an administrative matter and is not in any way a judicial determination.
 
McCann et al. v. The Queen - [1976] 1 F.C. 570, 68 D.L.R. (3d) 661, 29 C.C.C. (2d) 337 (T.D.)
  - This section of the Bill of Rights does not apply so as to impose procedural requirements with due process of the decision of an institutional head to dissociate (place in solitary confinement) a prisoner under the Penitentiary Service Regulation 2.30(1)(a) which is a purely administrative decision.
 
White and Birch v. Director of Stony Mountain Institution et al - [1976) 1 F.C. 540, 30 C.C.C. (2d) 49, 69 D.L.R. (3d) 682 (T.D.)
  - A decision to hold a prisoner in solitary confinement is a purely administrative decision and is not subject to the provisions of section 2(e) of the Canadian Bill of Rights.
 
Kosobook et al. v. Solicitor General of Canada et al - [1972] 1 OR 814,5 CCC (2d) 564, 19 CRNS 190 (Ont Co Ct)
  - A federal penitentiary Classification Board making a recommendation to the institutional head under Penitentiary Service Regulation s.2.30, as to whether or not a prisoner should be returned to general population from administrative dissociation (solitary confinement) is a purely administrative decision to which the Canadian Bill of Rights has no application.
 
R. v. Institutional Head of Beaver Creek Correctional Camp; ex parte McCaud - [1969] 1 O.R. 373, [1969) 1 C.C.C. 371, (Ont. C.A.)
  - Where the civil rights of an inmate might be affected by the decision of an institutional head in disciplinary proceedings then there must be a fair hearing in accordance with the principles of fund mental justice as required by the provisions of the Canadian Bill of Rights.
 
Re McLeod and Maksymowich (also reported as Re McLeod's Certiorari Application) - [1973) 5 W.W.A. 129, 12 C.C.C. (2d) 353, (N.W.T.S.C.)
  - Follows R. v. Beaver Creek Correctional Camp; ex parte McCaud, supra, with respect to the applicability of s.2(e) of the Canadian Bill of Rights to prison disciplinary proceedings where rights are affected.
 
Bruce and Meadley v. Reynett et al - [1979] 4 W.W.A. 408 (F.C.T.D.)
  - There was no evidence to indicate that the Director of the British Columbia Penitentiary did not act fairly in arriving at his decision to deny the applicant permission to marry, which was a purely administrative decision.
 
Bruce and Meadley v. Commissioner of Corrections - (1979),10 C.R. (3d) 166 (F.C.T.D.)
  - The right of the applicants to a fair hearing in accordance with section 2(e) of the Canadian Bill of Rights was not infringed by the statutory procedures followed by the respondents in deciding to transfer the applicant Bruce from British Columbia to Ontario.
 
3. (1) Duties of Minister of Justice - Subject to subsection (2), the Minister of Justice shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons by a Minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons at the first convenient opportunity.
     (2) Exception - A regulation need not be examined in accordance with subsection (1) if prior to being made it was examined as a proposed regulation in accordance with section 3 of the Statutory Instruments Act to ensure that it was not inconsistent with the purposes and provisions of this Part.
1960, c. 44, s. 3; 1970-71-72, c. 38, s. 29; 1985, c. 26, s. 105; 1992, c. 1, s. 144(F).
 
4. Short title - The provisions of this Part shall be known as the Canadian Bill of Rights.
 
PART II
 
5. (1) Savings - Nothing in Part I shall be construed to abrogate or abridge any human right or fundamental freedom not enumerated therein that may have existed in Canada at the commencement of this Act.
     (2) "Law of Canada" defined - The expression "law of Canada" in Part I means an Act of the Parliament of Canada enacted before or after the coming into force of this Act, any order, rule or regulation thereunder, and any law in force in Canada or in any part of Canada at the commencement of this Act that is subject to be repealed, abolished or altered by the Parliament of Canada.
     (3) Jurisdiction of Parliament - The provisions of Part I shall be construed as extending only to matters coming within the legislative authority of the Parliament of Canada.
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