Encyclopedia
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 designed 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 remedies that are more creative 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 broad support from a majority of the Canadian electorate 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 , namely freedom of conscience, 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:
the right to
vote and to be eligible to serve as member of a legislature.
a maximum duration of legislatures is set at five years.
an annual sitting of legislatures is required as a minimum.
- mobility rights: : 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:
life, liberty, and security of the person.
freedom from unreasonable search and seizure.
freedom from arbitrary detention.
rights on arrest or detention, including the right to retain a lawyer and to be informed of that right.
rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.
freedom from cruel and unusual punishment.
rights not to incriminate oneself.
rights to an interpreter in a court proceeding.
- equality rights: : 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:
English and French are the official languages of Canada and
New Brunswick.
the English and French-speaking communities of New Brunswick have equal rights to educational and cultural institutions.
the right to use either official language in
Parliament or the New Brunswick legislature.
the statutes and proceedings of Parliament and the New Brunswick legislature are to be printed in both official languages.
both official languages may be used in federal and New Brunswick courts.
the right to communicate with and be served by the federal and New Brunswick governments in either official language.
other constitutional language rights outside the Charter regarding English and French are sustained.
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.
- minority language education rights: : 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 and the
notwithstanding clause . 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 and obscenity . 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 was invoked routinely by the province of
Quebec . 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. The territory of Yukon also passed legislation once that invoked the notwithstanding clause, but the legislation was never proclaimed in force.
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".
History
Many of the rights and freedoms that are protected under the
Charter, including the rights to
freedom of speech,
habeas corpus and the presumption of innocence, have their roots in a set of Canadian laws and legal precedents sometimes known as the Implied Bill of Rights. Many of these rights were also included in the
Canadian Bill of Rights, which the
Canadian Parliament enacted in 1960. However, the
Canadian Bill of Rights had a number of shortcomings. Unlike the
Charter, it was an ordinary Act of Parliament, which could be amended by a simple majority of Parliament, and it was applicable only to the federal government. The courts also chose to interpret the
Bill of Rights conservatively, only on rare occasions applying it to find a contrary law inoperative. This came as a disappointment to liberals. The
Bill of Rights did not contain all of the rights that are now included in the
Charter, omitting, for instance, the right to vote and
freedom of movement within Canada. Neither the
Canadian Bill of Rights nor the Implied Bill of Rights established official bilingualism. This was first established on the federal level by the
Official Languages Act in 1969. New Brunswick, having its own large French-speaking minority, also adopted official bilingualism by statute that year and would strengthen this new policy by agreeing to its inclusion in the
Charter.
The centennial of
Canadian Confederation in 1967 aroused greater interest within the government in constitutional reform. Such reforms would include improving safeguards of rights, as well as
patriation of the Constitution, meaning the
British Parliament would no longer have to approve constitutional amendments. Subsequently, Attorney General
Pierre Trudeau appointed law professor Barry Strayer to research a potential bill of rights. While writing his report, Strayer consulted with a number of notable legal scholars, including Walter Tarnopolsky. Strayer's report advocated a number of ideas that were later incorporated into the
Charter, including protection for language rights. Strayer also advocated excluding economic rights. Finally, he recommended allowing for limits on rights. Such limits are included in the Charters limitation and notwithstanding clauses. In 1968, Strayer was made the Director of the Constitutional Law Division of the Privy Council Office and in 1974 he became Assistant Deputy Minister of Justice. During those years, Strayer played a role in writing the bill that was ultimately adopted.
Meanwhile, Trudeau, who had become
Liberal leader and prime minister in 1968, still very much wanted a constitutional bill of rights. The federal government and the
provinces discussed creating one during negotiations for patriation, which resulted in the Victoria Charter in 1971. This never came to be implemented. However, Trudeau continued with his efforts to patriate the Constitution, and promised constitutional change during the 1980 Quebec referendum. He would succeed in 1982 with the passage of the
Canada Act 1982. This enacted the
Constitution Act, 1982.
The inclusion of a charter of rights in the
Constitution Act was a much-debated issue. Trudeau spoke on television in October 1980 , and announced his intention to constitutionalize a bill of rights that would include fundamental freedoms, democratic guarantees, freedom of movement, legal rights, equality and language rights. He did not want a notwithstanding clause. While his proposal gained popular support, provincial leaders opposed the potential limits on their powers. The federal
Progressive Conservative opposition feared liberal bias among judges, should courts be called upon to enforce rights. Additionally, the British Parliament cited their right to uphold Canada's old form of government. At a suggestion of the Conservatives, Trudeau's government thus agreed to a committee of
Senators and MPs to further examine the bill of rights as well as the patriation plan. During this time, 90 hours were spent on the bill of rights alone, all filmed for television, while civil rights experts and interest groups put forward their perceptions on the
Charters flaws and omissions and how to remedy them. As Canada had a parliamentary system of government, and as judges were perceived not to have enforced rights well in the past, it was questioned whether the courts should be named as the enforcers of the Charter
, as Trudeau wanted. Conservatives argued that elected politicians should be trusted instead. It was eventually decided that the responsibility should go to the courts. At the urging of civil libertarians, judges could even now exclude evidence in trials if it was acquired in breach of Charter
rights in certain circumstances, something the Charter
was not originally going to provide for. As the process continued, more features were added to the Charter, including equality rights for people with disabilities, more sex equality guarantees and recognition of Canada's
multiculturalism. The limitations clause was also reworded to focus less on the importance of parliamentary government and more on justifiability of limits in free societies; the latter logic was more in line with rights developments around the world after World War II.
In its decision in the
Patriation Reference , the
Supreme Court of Canada had ruled there was a tradition that some provincial approval should be sought for constitutional reform. As the provinces still had doubts about the Charters merits, Trudeau was forced to accept the notwithstanding clause to allow governments to opt out of certain obligations. The notwithstanding clause was accepted as part of a deal called the Kitchen Accord, negotiated by the federal Attorney General
Jean Chrétien, Ontario's justice minister
Roy McMurtry and Saskatchewan's justice minister
Roy Romanow. Pressure from provincial governments and from the country's left wing, especially the
New Democratic Party, also prevented Trudeau from including any rights protecting private property.
Nevertheless, Quebec did not support the
Charter , with "conflicting interpretations" as to why. The opposition could have owed to the
Parti Québécois leadership being allegedly uncooperative, because it was more committed to gaining sovereignty for Quebec. It could have owed to Quebec leaders being excluded from the negotiation of the
Kitchen Accord, which they saw as being too centralist. It could have owed to provincial leaders' objections to the Accord's provisions relating to the process of future constitutional amendment. They also opposed the inclusion of mobility rights and minority language education rights. The
Charter is still applicable in Quebec because all provinces are bound by the Constitution. However, Quebec's opposition to the 1982 patriation package has led to two failed attempts to amend the Constitution which were designed primarily to obtain Quebec's political approval of the Canadian constitutional order.
While the
Canadian Charter of Rights and Freedoms was adopted in 1982, it was not until 1985 that the main provisions regarding equality rights came into effect. The delay was meant to give the federal and provincial governments an opportunity to review pre-existing statutes and strike potentially unconstitutional inequalities.
The
Charter has been amended since its enactment. Section 25 was amended in 1983 to explicitly recognize more rights regarding Aboriginal land claims, and section 16.1 was added in 1993. A proposed Rights of the Unborn Amendment in 1986-1987, which would have enshrined
fetal rights, failed in the federal Parliament. Other proposed amendments to the Constitution, included in the
Charlottetown Accord of 1992, were never passed. These amendments would have specifically required the
Charter to be interpreted in a manner respectful of Quebec's distinct society, and would have added further statements to the
Constitution Act, 1867 regarding racial and sexual equality and collective rights, and about minority language communities. Though the Accord was negotiated among many interest groups, the resulting provisions were so vague that Trudeau, then out of office, feared they would actually conflict with and undermine the Charters individual rights. He felt judicial review of the rights might be undermined if courts had to favour the policies of provincial governments, as governments would be given responsibility over linguistic minorities. Trudeau thus played a prominent role in leading the popular opposition to the Accord.
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
Charters 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 , which struck down Canada's abortion law, and Vriend v. Alberta , 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 . 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 . 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 , and the
Law test for section 15, developed in
Law v. Canada, [1999] 1 S.C.R....
. Since
Re B.C. Motor Vehicle Act , various approaches to defining and expanding the scope of fundamental justice 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] 2 S.C.R....
and
R. v. Big M Drug Mart, [1985] 1 S.C.R. 295 [i] is a landmark decision [i] ...
, 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 , 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 .
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 core distinction between the United States
Bill of Rights and
Canadian Charter is the existence of the limitations and notwithstanding clauses. Canadian courts have consequently interpeted each right more expansively. However, due to the limitations clause, where a violation of a right exists, the law will not necessarily grant protection of that right. In contrast, rights under the US
Bill of Rights are absolute and so a violation will not be found until there has been sufficient encroachment on those rights. The sum effect is that both constitutions provide comparable protection of many rights. Fundamental justice is therefore 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. , the Canadian Supreme Court considered
picketing of the kind the US First Amendment did not permit, as it was disruptive conduct . The Supreme 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 of 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
Charters 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
, 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 positive rights, economic rights are of questionable legitimacy.
The
Charter itself influenced the in the Constitution of South Africa. Trudeau himself later wrote in his
Memoirs that "Canada itself" could now be defined as a "society where all people are equal and where they share some fundamental values based upon freedom," and that all Canadians could identify with the values of liberty and equality.
The Charters unifying purpose was particularly important to the mobility and language rights. According to author Rand Dyck, some scholars believe section 23, with its minority language education rights, "was the only part of the Charter with which Pierre Trudeau was truly concerned." Through the mobility and language rights, French Canadians, who have been at the centre of unity debates, are able to travel throughout all Canada and receive government and educational services in their own language. Hence, they are not confined to Quebec , which would polarize the country along regional lines. The
Charter was also supposed to standardize previously diverse laws throughout the country and gear them towards a single principle of liberty.
Former
premier of Ontario Bob Rae has stated that the
Charter "functions as a symbol for all Canadians" in practice because it represents the core value of freedom. Academic Peter Russell has been more skeptical of the
Charters value in this field. Cairns, who feels the Charter
is the most important constitutional document to many Canadians, and that the Charter
was meant to shape the Canadian identity, has also expressed concern that groups within society see certain provisions as belonging to them alone rather than to all Canadians.
Criticism
While the Charter has enjoyed a great deal of popularity, with 82% of Canadians describing it as a "good thing" in opinion polls in 1987 and 1999, Hence, the perceived Americanization of Canadian politics is seen as coming at the expense of values more important for Canadians.
Right-wing critics Morton and Knopff have raised several concerns about the
Charter, notably by alleging that the federal government has used it to limit provincial powers by allying with various rights claimants and interest groups. In their book
The Charter Revolution & the Court Party, Morton and Knopff express their suspicions of this alliance in detail, accusing the Trudeau and
Chrétien governments of funding litigious groups. For example, these governments used the Court Challenges Program to support minority language educational rights claims. Morton and Knopff also claim that crown counsel have intentionally lost cases in which the government was taken to court for violating rights, particularly
gay rights and women's rights.
Political scientist Rand Dyck, in observing these criticisms, notes that while judges have had their scope of review widened, they have still upheld most laws challenged on
Charter grounds. With regard to litigious interest groups, Dyck points out that "the record is not as clear as Morton and Knopff imply. All such groups have experienced wins and losses."
The political philosopher
Charles Blattberg has criticized the
Charter for contributing to the fragmentation of the country, at both the individual and group levels. In encouraging discourse based upon rights, the
Charter is said to inject an adversarial spirit into Canadian politics, making it difficult to realize the common good. Blattberg also claims that the
Charter undercuts the Canadian political community since it is ultimately a cosmopolitan document. Finally, he argues that people would be more motivated to uphold individual liberties if they were expressed with terms that are much "thicker" than rights.
See also
...
- Quebec Charter of Human Rights and Freedoms
- Supreme Court of Canada
- List of Supreme Court of Canada cases
- List of Supreme Court of Canada cases
- List of Supreme Court of Canada cases
Notes
References
- G.-A Beaudoin and E. Ratushny, The Canadian Charter of Rights and Freedoms 2nd ed., Carswell, Toronto, 1989.
- P.W. Hogg, Constitutional law of Canada, 4th ed., Carswell: Scarborough with Supplement to Constitutional Law of Canada
- J.P. Humphrey, Human Rights and the United Nations: A Great Adventure, New York: Transnational Publishers, 1984.
- J.E. Magnet, Constitutional Law, 8th ed. .
External links
- - Charter of Rights website with video, audio and the Charter in over 20 languages
- - Canadian Department of Justice website
- by the Canadian Legal Information Institute
- by Professor Joseph E. Magnet, University of Ottawa
-
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