← Back to home

Canadian Charter Of Rights And Freedoms

Ah, the Charter. You want to dissect it. Fine. Don't expect me to hold your hand through this.

Canadian Charter of Rights and Freedoms

This, the English language version of the Charter, is more than just a document. It's a declaration, a set of principles etched into the very bedrock of Canada. Created in 1982, its purpose is to shield the rights and freedoms of every soul breathing Canadian air. It's the first part of the Constitution Act, 1982, and it doesn't mess around. It guarantees certain political rights to citizens of Canada, and the civil rights of everyone else, for that matter. It’s meant to be the glue, the unifying force, binding Canadians together with a common understanding of what’s protected, what’s inviolable. It was proclaimed into force by Queen Elizabeth II of Canada herself on April 17, 1982, a rather grand occasion, I’m told.

Before this, we had the Canadian Bill of Rights, enacted back in 1960. A federal statute, mind you, not a constitutional document. It was a nod to a global trend, a post-World War II push to formalize protections, inspired by the UN's Universal Declaration of Human Rights. It emerged from a growing awareness of the importance of human rights in Canada and freedoms. But as a mere statute, it could be tweaked, amended, or even ignored by the ordinary legislative process. And it had no sway over provincial laws. The Supreme Court of Canada, bless its cautious heart, interpreted it narrowly, showing a distinct reluctance to actually strike down laws. Between 1960 and 1982, a paltry five out of thirty-five cases brought before the Supreme Court concerning the Bill of Rights actually succeeded. Pathetic, really. This lack of effectiveness spurred the drive for something more robust, something constitutional.

The Charter itself was enacted by the British Parliament as part of the Canada Act 1982, a request from the Parliament of Canada in 1982. It was the culmination of efforts, largely spearheaded by Prime Minister Pierre Trudeau.

Expanding Judicial Power

The Charter dramatically broadened the scope of judicial review. Unlike the old Bill of Rights, it was explicit about guaranteeing rights and the judiciary's role in upholding them. Canadian courts, faced with violations of Charter rights, began striking down unconstitutional federal and provincial laws, or parts thereof. This was a significant shift from a legal landscape primarily concerned with the intricacies of federalism. The Charter handed courts new powers: more creative remedies and the ability to exclude evidence obtained in violation of rights. These were powers far beyond what was typical under the common law or in a system deeply influenced by the Parliamentary supremacy of the United Kingdom. Consequently, the Charter garnered both widespread public approval and criticism from those wary of an ascendant judicial power. It’s important to remember, the Charter applies only to government actions – federal, provincial, and municipal – and sometimes to common law, not private dealings.

Features

The Charter is a complex beast, laid out in numbered sections, each a potential battleground for rights.

  • Preamble: A foundational statement, though its legal weight is debated.
  • Guarantee of Rights and Freedoms (Section 1): This is the 'limitations clause'. It acknowledges that rights aren't absolute and can be limited, but only if those limits are demonstrably justified in a free and democratic society. This is where the famous Oakes test comes into play.
  • Fundamental Freedoms (Section 2): This section enumerates the bedrock freedoms: freedom of conscience, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press (and other media), freedom of peaceful assembly, and freedom of association. Case law has interpreted this as underpinning the religious neutrality of the state.
  • Democratic Rights (Sections 3, 4, 5, 4, 5): These ensure your right to participate in the political process. You have the right to vote and be elected to the House of Commons and provincial/territorial legislatures. It also sets a five-year limit on the life of these bodies and mandates an annual sitting of Parliament and legislatures.
  • Mobility Rights (Section 6): Canadians have the right to enter, remain in, and leave Canada. Citizens and permanent residents can also move to and reside in any province to pursue their livelihood.
  • Legal Rights (Sections 7–14): This is the crucial part for anyone facing the justice system. It covers the right to life, liberty, and security of the person (Section 7), freedom from unreasonable search and seizure (Section 8), freedom from arbitrary detention (Section 9), the right to counsel and habeas corpus (Section 10), rights in criminal and penal matters including the presumption of innocence (Section 11), protection from cruel and unusual punishment (Section 12), protection against self-incrimination (Section 13), and the right to an interpreter (Section 14).
  • Equality Rights (Section 15): This is the cornerstone of non-discrimination. It guarantees equal treatment before and under the law, and equal protection and benefit of the law, without discrimination.
  • Official Languages of Canada (Sections 16–22): English and French are the official languages of Canada and New Brunswick. This section outlines rights to use these languages in Parliament, legislatures, federal and New Brunswick courts, and in communications with federal and New Brunswick governments. It also preserves existing rights to use other languages, such as Aboriginal languages, though they don't gain explicit protection under the Charter itself.
  • Minority Language Education Rights (Section 23): Guarantees rights for citizens in French or English minority communities to have their children educated in their own language.
  • Enforcement (Section 24): This section empowers courts to enforce the Charter, allowing for remedies and the exclusion of evidence obtained in violation of Charter rights.
  • General Provisions (Sections 25–31): These sections clarify the Charter's operation. Section 25 notably states the Charter doesn't diminish existing Aboriginal rights. Section 27 mandates interpretation within a multicultural context. Section 28 ensures all Charter rights are guaranteed equally to men and women. Section 29 preserves rights of separate schools.
  • Application (Section 32): Explicitly states that the Charter applies to Parliament, the government of Canada, provincial legislatures, and governments of provinces.
  • Citation (Section 34): Simply names this part of the Constitution Act, 1982, as the "Canadian Charter of Rights and Freedoms".

Exceptions

The Charter isn't a free-for-all. It has built-in escape hatches, if you will.

  • Section 1: The Limitations Clause: This is where governments can argue why infringing a right is necessary. It requires the objective to be "pressing and substantial" and the infringement to be "demonstrably justified" in a free and democratic society. The Supreme Court of Canada developed the Oakes test to assess this. It's been used to uphold laws against hate speech and obscenity.
  • Section 33: The Notwithstanding Clause: This is the big one, the controversial escape hatch. It allows federal or provincial governments to temporarily override certain Charter rights (sections 2 and 7-15) for up to five years, renewable. The federal government has never used it, but Quebec, Saskatchewan, and Alberta have. Ontario invoked it in 2021 to push through legislation regarding election advertising. Yukon also passed legislation to invoke it, though it was never proclaimed. Its use is politically charged, often seen as a direct challenge to fundamental rights.

Rights and Freedoms

Let's break down what's actually protected. It’s a lot.

  • Fundamental Freedoms (Section 2): As mentioned, conscience, religion, thought, belief, expression, press, assembly, and association. These are the building blocks of a free society.
  • Democratic Rights: The right to vote, to run for office, to have regular elections with a maximum five-year term, and to ensure Parliament actually sits every year. Essential for any functioning democracy.
  • Mobility Rights (Section 6): The freedom to move across Canada, to live and work where you choose. This is crucial for national unity and economic opportunity.
  • Legal Rights (Sections 7–14): These are the safeguards against state overreach in the justice system. Right to life, liberty, security; protection from unreasonable searches; freedom from arbitrary arrest; right to a lawyer; presumption of innocence; protection against cruel and unusual punishment; protection against self-incrimination; right to an interpreter. These are non-negotiable.
  • Equality Rights (Section 15): The promise of equality for all, without discrimination based on listed grounds, and others that emerge through interpretation. This is a constantly evolving area of law.
  • Language Rights (Sections 16–22): The recognition of English and French as official languages, with specific rights for their use in government, legislature, and courts, particularly in New Brunswick. This acknowledges Canada's dual linguistic heritage.
  • Minority Language Education Rights (Section 23): A crucial safeguard for linguistic minorities, ensuring their children can be educated in their own language, subject to certain conditions.
  • Other Sections: These sections fill in the gaps, ensuring the Charter's application is clear, that existing rights (like Aboriginal rights under Section 35) are protected, and that interpretation considers multiculturalism and gender equality (Section 28).

History

The road to the Charter was long and winding, paved with debates and compromises.

The rights found in the Charter weren't conjured out of thin air. They have roots in a long tradition of Canadian legal precedent, often referred to as the Implied Bill of Rights. The Canadian Bill of Rights of 1960 was an earlier attempt, but as a federal statute, it lacked constitutional teeth. It could be easily amended and had no power over provincial laws. The Supreme Court’s reluctance to enforce it further highlighted its limitations.

The centennial of Canadian Confederation in 1967 sparked a renewed interest in constitutional reform. The goal was twofold: to better protect rights and to achieve full sovereignty of Canada by ending the power of the British Parliament to legislate for Canada – a process known as patriation. Attorney General Pierre Trudeau commissioned research into a potential bill of rights, with Barry Strayer's report laying groundwork for ideas like language rights, exclusion of economic rights, and the inclusion of limitations and notwithstanding clauses.

Constitution Act, 1982

Trudeau, having become prime minister in 1968, remained committed to a constitutional bill of rights. Negotiations for patriation, which included discussions on rights, led to the Victoria Charter in 1971, but it ultimately failed. Trudeau, however, pressed on, promising constitutional reform during the 1980 Quebec referendum. His persistence paid off in 1982 with the passage of the Canada Act 1982 by the British Parliament, which enacted the Constitution Act, 1982.

The inclusion of a charter of rights was fiercely debated. Trudeau envisioned a just society with a constitutionalized bill of rights encompassing fundamental freedoms, democratic guarantees, legal rights, language rights, and equality rights. He, however, was initially opposed to a notwithstanding clause. His proposal gained popular support, but provincial leaders balked at the potential erosion of their powers. The federal Progressive Conservative opposition worried about judicial bias. The process involved extensive parliamentary review, with civil liberties experts and advocacy groups weighing in. The question of whether courts, rather than elected politicians, should enforce the Charter was a major point of contention, ultimately decided in favour of the judiciary. Civil libertarians pushed for stronger remedial powers for courts, including the exclusion of evidence obtained in violation of Charter rights.

Over time, more rights were incorporated, including those for people with disabilities and stronger sex equality guarantees, alongside recognition of Canada's multiculturalism. The limitations clause was reworded to emphasize justifiability in free societies, aligning with international trends.

The Supreme Court's ruling in the Patriation Reference (1981) necessitated provincial consent for constitutional reform. Faced with continued provincial reservations, Trudeau conceded to the notwithstanding clause as part of the Kitchen Accord, negotiated by federal Attorney General Jean Chrétien and provincial ministers. Pressure from provinces, particularly regarding property rights, and from the New Democratic Party, prevented the inclusion of property rights protections.

Quebec

Quebec’s non-support for the Charter and the Constitution Act, 1982, stemmed from various factors. The Parti Québécois government, focused on sovereignty, may have felt sidelined by the Kitchen Accord. Objections were also raised about the provisions for future constitutional amendments and the inclusion of mobility and minority language education rights. Despite its opposition, the Charter applies in Quebec due to its constitutional status. Quebec's resistance led to subsequent, ultimately failed, attempts to amend the constitution – the Meech Lake Accord and Charlottetown Accord – aimed at securing Quebec's political acceptance of the Canadian constitutional framework.

Following 1982

While the Charter was enacted in 1982, key provisions like equality rights (Section 15) didn't come into effect until 1985. This delay allowed governments time to review existing legislation for potential Charter conflicts.

Amendments

The Charter has seen amendments. Section 25 was modified in 1983 to better recognize Aboriginal land claims, and Section 16.1 was added in 1993. The 1992 Charlottetown Accord, which failed, would have required the Charter to be interpreted in light of Quebec's distinct society and introduced new provisions on racial and sexual equality, collective rights, and minority language communities. Trudeau, out of office, actively opposed it, fearing it would undermine individual rights.

Interpretation and Enforcement

The courts, with the Supreme Court of Canada at the apex, are the arbiters of the Charter. Litigation challenging the Charter is known as a Charter challenge.

The Charter's supremacy, enshrined in Section 52 of the Constitution Act, 1982, means courts can strike down unconstitutional laws, just as they did with issues of federalism. Section 24 grants courts significant remedial powers, including the ability to exclude evidence obtained in violation of rights. Landmark decisions include R v Morgentaler (1988), which struck down Canada's abortion law, and Vriend v Alberta (1998), where the court read protection for sexual orientation into provincial human rights legislation.

Cases can reach the courts through criminal prosecutions, applications for injunctions against government actions, or reference questions posed by governments to higher courts, as seen in Re Same-Sex Marriage (2004). The Provincial Judges Reference arose from a question posed by the government of Prince Edward Island regarding judicial independence.

The Supreme Court of Canada, the ultimate authority on Charter interpretation.

Judges have developed tests for interpreting specific Charter provisions, such as the Oakes test for Section 1 and the now defunct Law test for Section 15. Section 7's scope of fundamental justice has been broadly interpreted since Reference Re BC Motor Vehicle Act (1985).

Purposive and Generous Interpretation

Courts generally adopt a purposive interpretation of Charter rights, meaning they focus on the broader purpose of the right rather than its original, narrow meaning. This approach, evident since cases like Hunter v Southam Inc (1984) and R v Big M Drug Mart Ltd (1985), allows rights to expand with societal changes, often at the expense of government power.

While respected scholars like Peter Hogg approve of this approach in some instances, others, like Ted Morton and Rainer Knopff, criticize its perceived radicalism, arguing it has led to the creation of new rights rather than simply adapting existing ones, citing the expansion of rights against self-incrimination as an example.

Other Interpretations

International legal precedents, such as those from the U.S. Bill of Rights and the Constitution of South Africa, are considered, but are not binding. The Supreme Court has noted that these documents, while influential, originate from different contexts. Advocacy groups frequently intervene in cases to present arguments, shaping judicial interpretation. The "dialogue principle" also encourages a back-and-forth between courts and governments, with legislation responding to court rulings.

Comparisons with Other Human Rights Documents

The U.S. Bill of Rights was an influence, but Canadian rights are interpreted more broadly, tempered by Section 1's limitations clause. The existence of Section 1 is a key distinction, meaning rights are not always absolute, unlike in the U.S. where violations are often found only after significant encroachment.

The Human Rights Act 1998 in the UK, allowing direct enforcement of the European Convention on Human Rights, is seen by some as partly inspired by the Canadian Charter. Similarities exist with European human rights law, leading Canadian courts to consider rulings from the European Court of Human Rights.

Canadian Charter vs. U.S. Bill of Rights

The most significant differences lie in the Charter's limitations and notwithstanding clauses. This allows for a broader interpretation of rights, but also permits justifiable infringements. Section 7's "fundamental justice" is interpreted more expansively than the U.S. Due Process Clause. Freedom of expression under Section 2 has a wider scope than the U.S. First Amendment, as demonstrated in cases involving picketing. The limitations clause has also allowed for laws, such as restrictions on English signage in Quebec or publication bans on juvenile offenders, that might be unconstitutional in the U.S. The Equal Rights Amendment in the U.S., though unratified, mirrors Section 28's guarantee of gender equality, which, unlike its U.S. counterpart, faced less opposition in Canada after feminist advocacy. Notably, the Charter does not protect the right to possess firearms, a right upheld in the U.S.

Comparisons to Other Documents

The International Covenant on Civil and Political Rights shares parallels, but sometimes offers more explicit protections, such as for legal aid. The Charter is less explicit on economic and social rights compared to documents like the Quebec Charter of Human Rights and Freedoms or the International Covenant on Economic, Social and Cultural Rights. Courts have been hesitant to read economic rights into the Charter, viewing them as political matters and questioning the legitimacy of positive rights.

The Charter has influenced other jurisdictions, including the Bill of Rights in South Africa and Jamaica's Charter of Fundamental Rights and Freedoms. New Zealand's Bill of Rights Act 1990 also adopted the "justified limitations" wording from Section 1.

The Charter and National Values

The Charter was intended to be a cornerstone of Canadian values and national unity. Pierre Trudeau himself saw it as defining Canada as a society of equal individuals sharing fundamental values of liberty and equality. Mobility and language rights were particularly crucial for integrating French Canadians and preventing national division. The Charter aimed to standardize laws and align them with principles of liberty.

Former Premier of Ontario, Bob Rae, has described the Charter as a symbol of freedom for Canadians. However, others, like Peter Russell, express skepticism about its unifying capacity. Concerns exist that certain groups claim ownership of specific Charter provisions, rather than seeing them as universally applicable. Controversial issues like abortion and pornography have also been raised by the Charter, leading to division. Still, public opinion polls indicate that most Canadians view the Charter as representative of Canada, even if they are not fully aware of its specifics. The preamble's mention of "the supremacy of God" and the rule of law has been a point of contention, with little practical legal consequence. Section 27's recognition of multiculturalism enjoys broad public support.

Criticism

Despite its popularity, the Charter faces criticism from various political viewpoints. Some argue it undermines democracy by giving unelected judges too much power, as articulated by Professor Michael Mandel. Mandel also contends that the Charter has led to an "Americanization" of Canadian politics, prioritizing individual and corporate rights over group and social rights, and calls for the inclusion of rights like health care and free education. The labour movement has expressed disappointment over the courts' reluctance to broadly support union activities like the right to strike.

Conservative critics like Ted Morton and Rainer Knopff argue the federal government has used the Charter to curb provincial powers, alleging government funding of litigation groups through programs like the Court Challenges Program to advance specific rights agendas, such as minority language education. They also suggest intentional losses in court by crown counsel in cases involving gay rights and women's rights.

Political scientist Rand Dyck acknowledges these criticisms but notes that courts have generally upheld most challenged laws and that interest groups experience both wins and losses.

Political philosopher Charles Blattberg criticizes the Charter for contributing to societal fragmentation and an adversarial political climate, arguing it promotes a cosmopolitan outlook that undermines national community. He suggests that more "thick" (less abstract) language than mere "rights" would foster greater commitment to liberties.