Canada's Constitutional Documents

The Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982. The Charter is intended to protect certain political and civil rights of people in Canada from the policies and actions of all levels of government. It is also supposed to unify Canadians around a set of principles that embody those rights.

The Charter was preceded by the Canadian Bill of Rights, which was introduced by the government of John Diefenbaker in 1960. However, the Bill of Rights was only a federal statute, rather than a constitutional document. Therefore, it was limited in scope and was easily amendable. This motivated some within government to improve rights protections in Canada. The movement for human rights and freedoms that emerged after World War II also wanted to entrench the principles enunciated in the Universal Declaration of Human Rights. Hence, Prime Minister Pierre Trudeau's government enacted the Charter in 1982.

One of the most notable effects of the adoption of the Charter was to greatly expand the scope of judicial review, because the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Bill of Rights. The courts, when confronted with violations of Charter rights, have struck down unconstitutional statutes or parts of statutes, as they did when Canadian case law was primarily concerned with resolving issues of federalism. However, the Charter granted new powers to the courts to enforce more creative remedies and to exclude more evidence in trials. These powers are greater than what was typical under the common law and under a system of government that, influenced by Canada's mother country the United Kingdom, was based upon Parliamentary supremacy. As a result, the Charter has attracted both passionate support from liberals and criticisms by opponents of increased judicial power.
Features

Under the Charter, persons physically present in Canada have numerous civil and political rights. Most of the rights can be exercised by any legal person, including a corporation, but a few of the rights belong exclusively to natural persons or to citizens of Canada. The rights are enforceable by the courts through section 24 of the Charter, which allows courts discretion to award remedies to those whose rights have been denied. This section also allows courts to exclude evidence in trials if the evidence was acquired in a way that conflicts with the Charter and might damage the reputation of the justice system. Section 32 confirms that the Charter is binding on the federal government, the territories under its authority, and the provincial governments.

The rights and freedoms enshrined in the Charter include:

• fundamental freedoms (section 2), namely freedom of religion, freedom of thought, freedom of expression and freedom of the press, freedom of peaceful assembly, and freedom of association.
• democratic rights: generally, the right to participate in political activities and the right to a democratic form of government:
  • Section 3: the right to vote and to be eligible to serve as member of a legislature.
  • Section 4: a maximum duration of legislatures is set at five years.
  • Section 5: an annual sitting of legislatures is required as a minimum.
• mobility rights: (section 6): the right to enter and leave Canada, and to move to and take up residence in any province, or to reside outside Canada.
• legal rights: rights of people in dealing with the justice system and law enforcement, namely:
  • Section 7: life, liberty, and security of the person.
  • Section 8: freedom from unreasonable search and seizure.
  • Section 9: freedom from arbitrary detention.
  • Section 10: rights on arrest or detention, including the right to retain a lawyer and to be informed of that right.
  • Section 11: rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.
  • Section 12: freedom from cruel and unusual punishment.
  • Section 13: rights not to incriminate oneself.
  • Section 14: rights to an interpreter in a court proceeding.
• equality rights: (section 15): equal treatment before and under the law, and equal protection and benefit of the law without discrimination.
• language rights: generally, the right to use either the English or French language in communications with Canada's federal government and certain provincial governments. Specifically, the language laws enshrined in the Charter include:
  • Section 16: English and French are the official languages of Canada and New Brunswick.
  • Section 16.1: the English and French-speaking communities of New Brunswick have equal rights to educational and cultural institutions.
  • Section 17: the right to use either official language in Parliament or the New Brunswick legislature.
  • Section 18: the statutes and proceedings of Parliament and the New Brunswick legislature are to be printed in both official languages.
  • Section 19: both official languages may be used in federal and New Brunswick courts.
  • Section 20: the right to communicate with and be served by the federal and New Brunswick governments in either official language. Section 21: other constitutional language rights outside the Charter regarding English and French are sustained.
  • Section 22: existing rights to use languages besides English and French are not affected by the fact that only English and French have language rights in the Charter. (Hence, if there are any rights to use Aboriginal languages anywhere they would continue to exist, though they would have no direct protection under the Charter.)
• minority language education rights: (Section 23): rights for certain citizens belonging to French or English-speaking minority communities to be educated in their own language.

These rights are generally subject to the limitations clause (section 1) and the notwithstanding clause (section 33). The limitations clause in section 1 allows governments to justify certain infringements of Charter rights. Every case in which a court discovers a violation of the Charter would therefore require a section 1 analysis to determine if the law can still be upheld. Infringements are upheld if the purpose for the government action is to achieve what would be recognized as an urgent or important objective in a free society, and if the infringement can be "demonstrably justified." Section 1 has thus been used to uphold laws against objectionable conduct such as hate speech (e.g., in R. v. Keegstra) and obscenity (e.g., in R. v. Butler). Section 1 also confirms that the rights listed in the Charter are guaranteed.

The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7–15 for up to five years, subject to renewal. The Canadian federal government has never invoked it, and some have speculated that its use would be politically costly. In the past, the notwithstanding clause has been invoked by the province of Quebec, which has never ratified the Charter but is subject to it nonetheless. The provinces of Saskatchewan and Alberta have also invoked the notwithstanding clause, to end a strike and to protect an exclusively heterosexual definition of marriage, respectively.

Other sections help clarify how the Charter works in practice. These include,

• Section 25, which states that the Charter does not derogate existing Aboriginal rights and freedoms. Aboriginal rights, including treaty rights, receive more direct constitutional protection under section 35 of the Constitution Act, 1982.
• Section 26, which clarifies that other rights and freedoms in Canada are not invalidated by the Charter.
• Section 27, which requires the Charter to be interpreted in a multicultural context.
• Section 28, which states all Charter rights are guaranteed equally to men and women.
• Section 29, which confirms the rights of religious schools are preserved.
• Section 30, which clarifies the applicability of the Charter in the territories.
• Section 31, which confirms that the Charter does not extend the rights of legislatures.

Finally, section 34 states that the first 34 sections of the Constitution Act, 1982 may be collectively referred to as the "Canadian Charter of Rights and Freedoms".

Interpretation and enforcement

The task of interpreting and enforcing the Charter falls to the courts, with the Supreme Court of Canada being the ultimate authority on the matter.

With the Charter's supremacy confirmed by section 52 of the Constitution Act, 1982, the courts continued their practice of striking down unconstitutional statutes or parts of statutes as they had with earlier case law regarding federalism. However, under section 24 of the Charter, courts also gained new powers to enforce creative remedies and exclude more evidence in trials. Courts have since made many important decisions, including R. v. Morgentaler (1988), which struck down Canada's abortion law, and Vriend v. Alberta (1998), in which the Supreme Court found the province's exclusion of homosexuals from protection against discrimination violated section 15. In the latter case, the Court then read the protection into the law.

Courts may receive Charter questions in a number of ways. Rights claimants could be prosecuted under a criminal law that they argue is unconstitutional. Others may feel government services and policies are not being dispensed in accordance with the Charter, and apply to lower-level courts for injunctions against the government (as was the case in Doucet-Boudreau? v. Nova Scotia (Minister of Education)). A government may also raise questions of rights by submitting reference questions to higher-level courts; for example, Prime Minister Paul Martin's government approached the Supreme Court with Charter questions as well as federalism concerns in the case Re Same-Sex? Marriage (2004). Provinces may also do this with their superior courts. The government of Prince Edward Island initiated the Provincial Judges Reference by asking its provincial Supreme Court a question on judicial independence under section 11.

In several important cases, judges developed various tests and precedents for interpreting specific provisions of the Charter. These include the Oakes test for section 1, set out in the case R. v. Oakes (1986), and the Law test for section 15, developed in Law v. Canada (1999). Since Re B.C. Motor Vehicle Act (1985), various approaches to defining and expanding the scope of fundamental justice (the Canadian name for natural justice or due process) under section 7 have been adopted.

In general, courts have embraced a purposive interpretation of Charter rights. This means that since early cases like Hunter v. Southam (1984) and R. v. Big M Drug Mart (1985), they have concentrated not on the traditional, limited understanding of what each right meant when the Charter was adopted in 1982, but rather on changing the scope of rights as appropriate to fit their broader purpose. This is tied to the generous interpretation of rights, as the purpose of the Charter provisions is assumed to be to increase rights and freedoms of people in a variety of circumstances, at the expense of the government powers. Constitutional scholar Peter Hogg has approved of the generous approach in some cases, although for others he argues the purpose of the provisions was not to achieve a set of rights as broad as courts have imagined. Indeed, this approach has not been without its critics. Alberta politician F.L. Morton and political scientist Rainer Knopff have been very critical of this phenomenon. Although they feel the basis for the approach, the living tree doctrine (the classical name for generous interpretations of the Canadian Constitution), is sound, they argue Charter case law has been more radical. When the living tree doctrine is applied right, the authors claim, "The elm remained an elm; it grew new branches but did not transform itself into an oak or a willow." The doctrine can be used, for example, so a right is upheld even when a government threatens to violate it with new technology, as long as the essential right remains the same; but the authors claim that the courts have used the doctrine to "create new rights." As an example, the authors note that the Charter right against self-incrimination has been extended to cover scenarios in the justice system that had previously been unregulated by self-incrimination rights in other Canadian laws.

Another general approach to interpreting Charter rights is to consider legal precedent regarding the United States Bill of Rights, which influenced the text of the Charter and has generated a great deal of thoughts on the extent of rights in a common law, democratic system and how bills of rights should be enforced by courts. However, American precedent is not considered infallible. The Canadian Supreme Court has referred to the Canadian and American bills as being "born to different countries in different ages and in different circumstances."

Legal organizations have also been formed and frequently intervene in cases to assist courts in the process of interpreting the Charter. A notable example would be the Women's Legal Education and Action Fund (LEAF).

A further approach to the Charter, taken by the courts, is the dialogue principle, which involves greater participation by elected governments. This approach involves governments drafting legislation in response to court rulings and courts acknowledging the effort if the new legislation is challenged.

Comparisons with other human rights instruments

Some Canadian Members of Parliament saw the movement to entrench a charter as contrary to the British model of Parliamentary supremacy. Others would say that the European Convention on Human Rights has now limited British parliamentary power to a greater degree than the Canadian Charter limited the power of the Canadian Parliament and provincial legislatures. Hogg has speculated that the British adopted the European Convention partly because they were inspired by the similar Canadian Charter.

The Canadian Charter bears a number of similarities to the European Convention, specifically in relation to the limitations clauses contained in the European document. The underlying reason for these similarities is that the Canadian Charter and the European Convention are both inspired by the Universal Declaration of Human Rights. Because of this similarity with European human rights law, the Supreme Court of Canada turns not only to the Constitution of the United States case law in interpreting the Charter, but also to European Court of Human Rights cases.

The United States Bill of Rights can be contrasted with the Canadian Charter in that the latter contains a limitations clause and the former does not. The Supreme Court of Canada has consequently approached rights in the Canadian Charter with a view that they are more generous. Conversely, as the US Bill of Rights has no limitations clause or notwithstanding clause, the Supreme Court of the United States must define rights provisions themselves more conservatively. Fundamental justice (in section 7 of the Canadian Charter) is interpreted to include more legal protections than due process, which is its US equivalent. Freedom of expression in section 2 also has a more wide-ranging scope than the First Amendment to the United States Constitution's freedom of speech. In RWDSU v. Dolphin Delivery Ltd. (1986), the Canadian Supreme Court considered picketing of the kind the US First Amendment did not permit, as it was disruptive conduct (though there was some speech involved that the First Amendment might otherwise protect). The Canadian Court, however, ruled the picketing, including the disruptive conduct, were fully protected under section 2 of the Charter. The Court then relied on section 1 to find the injunction against the picketing was just. The limitations clause has also allowed governments to enact laws that would be considered unconstitutional in the US. The Supreme Court of Canada has upheld some of Quebec's limits on the use of English on signs and has upheld publication bans that prohibit media from mentioning the names of juvenile criminals.

Section 28 of the Charter performs a function similar to that which would be performed by the Equal Rights Amendment in the US. However, the Equal Rights Amendment is currently unratified. This may be because the American Amendment received an unfavourable reaction from the religious right, and there was no comparable opposition to the Charter's section 28. Still, Canadian feminists had to stage large protests to demonstrate support for the inclusion of the section.

The International Covenant on Civil and Political Rights has several parallels with the Canadian Charter, but in some cases the Covenant goes further with regard to rights in its text. For example, a right to legal aid has been read into section 10 of the Charter (the right to counsel), but the Covenant explicitly guarantees the accused need not pay "if he does not have sufficient means."

The Canadian Charter has little to say, explicitly at least, about economic and social rights. On this point, it stands in marked contrast with the Quebec Charter of Human Rights and Freedoms and with the International Covenant on Economic, Social and Cultural Rights. There are some who feel economic rights ought to be read into section 7 rights to security of the person and section 15 equality rights to make the Charter similar to the Covenant. The rationale is that economic rights can relate to a decent standard of living and can help the civil rights flourish in a livable environment. Canadian courts, however, have been hesitant in this area, stating that economic rights are political questions and adding that as negative rights, economic rights are of questionable legitimacy.

The Charter itself influenced the Bill of Rights in the Constitution of South Africa.