The
Canadian Charter of Rights and Freedoms (also known as
The Charter of Rights and Freedoms or simply the
Charter) is a
bill of rightsA bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
entrenched in the
Constitution of CanadaThe Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
. It forms the first part of the
Constitution Act, 1982The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
. The Charter guarantees certain
politicalThe politics of Canada function within a framework of parliamentary democracy and a federal system of parliamentary government with strong democratic traditions. Canada is a constitutional monarchy, in which the Monarch is head of state...
rights to Canadian citizens and
civil rightsCivil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
of everyone in
CanadaCanada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
from the policies and actions of all areas and levels of
governmentThe Government of Canada, formally Her Majesty's Government, is the system whereby the federation of Canada is administered by a common authority; in Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council...
. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was signed into law by Queen Elizabeth II of Canada on April 17, 1982 (along with the rest of the Act).
The Charter was preceded by the
Canadian Bill of RightsThe Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
, which was enacted in 1960. However, the Bill of Rights was only a federal
statuteA statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, rather than a constitutional document. As a federal statute, it was limited in scope, was easily amendable by Parliament, and it had no application to provincial laws. The Supreme Court of Canada also narrowly interpreted the Bill of Rights and the Court was reluctant to declare laws inoperative. The relative ineffectiveness of the Canadian Bill of Rights motivated many to improve rights protections in Canada. The movement for human rights and freedoms that emerged after
World War IIWorld War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
also wanted to entrench the principles enunciated in the
Universal Declaration of Human RightsThe Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
. The British Parliament formally enacted the Charter as a part of the
Canada Act 1982The Canada Act 1982 is an Act of the Parliament of the United Kingdom that was passed at the request of the Canadian federal government to "patriate" Canada's constitution, ending the necessity for the country to request certain types of amendment to the Constitution of Canada to be made by the...
at the request of the
Parliament of CanadaThe Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
in 1982, the result of the efforts of the Government of
Prime MinisterThe Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...
Pierre TrudeauJoseph Philippe Pierre Yves Elliott Trudeau, , usually known as Pierre Trudeau or Pierre Elliott Trudeau, was the 15th Prime Minister of Canada from April 20, 1968 to June 4, 1979, and again from March 3, 1980 to June 30, 1984.Trudeau began his political career campaigning for socialist ideals,...
.
One of the most notable effects of the adoption of the Charter was to greatly expand the scope of
judicial reviewJudicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
, 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
courtsThe court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial or territorial....
, when confronted with violations of Charter rights, have struck down unconstitutional federal and provincial statutes and regulations or parts of statutes and regulations, as they did when
Canadian case lawThe Canadian legal system has its foundation in the British common law system, inherited from being a former colony of the United Kingdom and later a member of the Commonwealth of Nations. Quebec, however, still retains a civil system for issues of private law...
was primarily concerned with resolving issues of
federalismCanada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
. 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 lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and under a system of government that, influenced by Canada's mother country the
United KingdomThe United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, 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. The Charter only applies to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to the common law, not to private activity.
Features
Under the Charter, people physically present in Canada have numerous civil and political rights. Most of the rights can be exercised by any legal person, (the Charter does not define the corporation as a "legal person"), but a few of the rights belong exclusively to natural persons, or (as in sections 3 and 6) only to
citizens of CanadaCanadian citizenship is typically obtained by birth in Canada, birth abroad when at least one parent is a Canadian citizen and was born or naturalized in Canada, or by adoption abroad by at least one Canadian citizen. It can also be granted to a permanent resident who lives in Canada for three out...
. The rights are enforceable by the courts through
section 24Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
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 32Section Thirty-two of the Canadian Charter of Rights and Freedoms concerns the application and scope of the Charter. Only claims based on the type of law contemplated by this section can be brought before the Court....
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
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
), namely freedom of conscience, freedom of religionFreedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
, freedom of thoughtFreedom of thought is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints....
, freedom of belief, freedom of expressionFreedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
, freedom of the pressFreedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...
and of other media of communication, freedom of peaceful assemblyFreedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, and freedom of associationFreedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
.
- Democratic rights: generally, the right to participate in political activities and the right to a democratic
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
form of government:
- Section 3:
Section Three of the Canadian Charter of Rights and Freedoms is a section of the Charter that constitutionally guarantees all Canadian citizens the democratic right to vote in a general federal or provincial election and the right to be eligible for membership in the House of Commons or of a...
the right to voteVoting is a method for a group such as a meeting or an electorate to make a decision or express an opinion—often following discussions, debates, or election campaigns. It is often found in democracies and republics.- Reasons for voting :...
and to be eligible to serve as member of a legislatureThis is a list of the Legislative Assemblies of Canada's provinces and territories. *Governing parties are shown by shading.*1 "Provincial parties" are parties that use the province's name followed by "Party" or something similar...
.
- Section 4:
Section Four of the Canadian Charter of Rights and Freedoms is one of three democratic rights sections in the Charter. Section 4 guarantees that federal and provincial elections must take place from time to time. Subsection 4 provides that the maximum term of the House of Commons, and of all the...
the maximum duration of legislatures is set at five years.
- Section 5:
Section Five of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada, and the last of three democratic rights in the Charter. Its role is to establish a rule regarding how frequently the Parliament of Canada and the legislatures of the provinces and territories of...
an annual sitting of legislatures is required as a minimum.
- Mobility rights: (section 6
Section Six of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects the mobility rights of Canadian citizens, and to a lesser extent that of permanent residents. By mobility rights, the section refers to the individual practice...
): 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:
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
right to life, liberty, and security of the person.
- Section 8:
Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state...
freedom from unreasonable search and seizureSearch and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
.
- Section 9:
Section Nine of the Canadian Charter of Rights and Freedoms, found under the "Legal rights" heading in the Charter, guarantees the right against arbitrary detainment and imprisonment...
freedom from arbitrary detention or imprisonment.
- Section 10:
Section Ten of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test...
right to legal counsel and the guarantee of habeas corpus is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
.
- Section 11:
Section Eleven of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by...
rights in criminal and penal matters such as the right to be presumed innocentThe presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
until proven guilty.
- Section 12:
Section Twelve of the Canadian Charter of Rights and Freedoms, as part of the Charter and of the Constitution of Canada, is a legal rights section that protects an individual's freedom from cruel and unusual punishments in Canada. The section has generated some case law, including the essential...
right not to be subject to cruel and unusual punishmentCruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
.
- Section 13:
Section Thirteen of the Canadian Charter of Rights and Freedoms is a section of the Charter which, along with section 11 , specifies rights regarding self-incrimination.It reads:...
rights against self-incrimination
- Section 14:
Section Fourteen of the Canadian Charter of Rights and Freedoms is the last section under the "Legal rights" heading in the Charter. It provides anyone in a court the right to an interpreter if the person does not speak the language being used or is deaf.-Text:The section states:-Background:Before...
rights to an interpreter in a court proceeding.
- Equality rights: (section 15
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
): 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
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
or French languageFrench is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
in communications with Canada's federal government and certain provincial governments. Specifically, the language laws enshrined in the Charter include:
- Section 16:
Section Sixteen of the Canadian Charter of Rights and Freedoms is the first of several sections of the Charter dealing with Canada's two official languages, English and French...
English and French are the official languages of Canada and New BrunswickNew Brunswick is one of Canada's three Maritime provinces and is the only province in the federation that is constitutionally bilingual . The provincial capital is Fredericton and Saint John is the most populous city. Greater Moncton is the largest Census Metropolitan Area...
.
- Section 16.1:
Section 16.1 of the Canadian Charter of Rights and Freedoms is the newest section of the Charter. It was enacted by the Constitution Amendment, 1993 and guarantees equality between English-speaking and French-speaking New Brunswickers.Section 16.1 is not to be confused with subsection 16 , which...
the English and French-speaking communities of New Brunswick have equal rights to educationalEducation in Canada is for the most part provided publicly, funded and overseen by federal, provincial, and local governments. Education is within provincial jurisdiction and the curriculum is overseen by the province. Education in Canada is generally divided into primary education, followed by...
and culturalCanadian culture is a term that explains the artistic, musical, literary, culinary, political and social elements that are representative of Canada and Canadians, not only to its own population, but people all over the world. Canada's culture has historically been influenced by European culture and...
institutions.
- Section 17:
Section Seventeen of the Canadian Charter of Rights and Freedoms is one of the provisions of the Charter that addresses rights relating to Canada's two official languages, English and French...
the right to use either official language in ParliamentThe Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
or the New Brunswick legislature.
- Section 18:
Section Eighteen of the Canadian Charter of Rights and Freedoms is one of the provisions of the Charter that addresses rights relating to Canada's two official languages, English and French. Like section 133 of the Constitution Act, 1867, section 18 requires that all statutes and other records...
the statutes and proceedings of Parliament and the New Brunswick legislature are to be printed in both official languages.
- Section 19:
Section Nineteen of the Canadian Charter of Rights and Freedoms is one of the provisions of the Charter that addresses rights relating to Canada's two official languages, English and French. Like section 133 of the Constitution Act, 1867, section 19 allows anyone to speak English or French in...
both official languages may be used in federal and New Brunswick courts.
- Section 20:
Section Twenty of the Canadian Charter of Rights and Freedoms is one of the sections of the Charter dealing with Canada's two official languages, English and French. Along with section 16, section 20 is one of the few sections under the title "Official Languages of Canada" that guarantees...
the right to communicate with and be served by the federal and New Brunswick governments in either official language.
- Section 21:
Section Twenty-one of the Canadian Charter of Rights and Freedoms is one of several sections of the Charter relating to the official languages of Canada. The official languages, under section 16 of the Charter, are English and French...
other constitutional language rights outside the Charter regarding English and French are sustained.
- Section 22:
Section Twenty-two of the Canadian Charter of Rights and Freedoms is one of several sections of the Charter relating to the official languages of Canada. The official languages, under section 16, are English and French...
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 AboriginalAboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
languages anywhere they would continue to exist, though they would have no direct protection under the Charter.)
- Minority language education rights: (Section 23
Section Twenty-three of the Canadian Charter of Rights and Freedoms is the section of the Charter that constitutionally guarantees minority language educational rights to French-speaking communities outside Quebec, and, to a lesser extent, English-speaking minorities in Quebec...
): rights for certain citizens belonging to French or English-speaking minority communities to be educated in their own language.
All of these rights are subject to the
limitations clause (
section 1Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
) and some of these rights are subject to the
notwithstanding clause (
section 33Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
). 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 speechHate speech is, outside the law, any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion, or other characteristic....
(e.g., in
R. v. KeegstraR. v. Keegstra, [1990] 3 S.C.R. 697 is a landmark freedom of expression decision of the Supreme Court of Canada where the Court upheld the Criminal Code of Canada provision prohibiting the wilful promotion of hatred against an identifiable group as constitutional under the freedom of expression...
) and
obscenityAn obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
(e.g., in
R. v. ButlerR. v. Butler, [1992] 1 S.C.R. 452 is a leading Supreme Court of Canada decision on pornography and state censorship. In this case, the Court had to balance the right to freedom of expression under section 2 of the Canadian Charter of Rights and Freedoms with women's rights; the outcome has been...
). 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
QuebecQuebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
(which did not support the enactment of the Charter but is subject to it nonetheless). The provinces of
SaskatchewanSaskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....
and
AlbertaAlberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
have also invoked the notwithstanding clause, to end a
strikeStrike action, also called labour strike, on strike, greve , or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became...
and to protect an exclusively
heterosexual definitionOn July 20, 2005, Canada became the fourth country in the world and the first country in the Americas to legalize same-sex marriage nationwide with the enactment of the Civil Marriage Act which provided a gender-neutral marriage definition...
of marriage, respectively. (Note that Alberta's use of the notwithstanding clause is of no force or effect, since the definition of marriage is federal not provincial jurisdiction.) 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
Section Twenty-five of the Canadian Charter of Rights and Freedoms is the first section under the heading "General" in the Charter, and like other sections within the "General" sphere, it aids in the interpretation of rights elsewhere in the Charter...
, 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 35Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...
of the Constitution Act, 1982.
- Section 26
Section Twenty-six of the Canadian Charter of Rights and Freedoms, like other provisions within the section 25 to 31 bloc, provides a guide in interpreting how the Charter should affect Canadian society...
, which clarifies that other rights and freedoms in Canada are not invalidated by the Charter.
- Section 27
Section Twenty-seven of the Canadian Charter of Rights and Freedoms is a section of the Charter that, as part of a range of provisions within the section 25 to section 31 bloc, helps determine how rights in other sections of the Charter should be interpreted and applied by the courts...
, which requires the Charter to be interpreted in a multiculturalMulticulturalism is the appreciation, acceptance or promotion of multiple cultures, applied to the demographic make-up of a specific place, usually at the organizational level, e.g...
context.
- Section 28
Section Twenty-eight of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada's Charter of Rights. It does not contain a right so much as it provides a guide as to how to interpret rights in the Charter...
, which states all Charter rights are guaranteed equally to men and women.
- Section 29
Section Twenty-nine of the Canadian Charter of Rights and Freedoms is the section of Charter that most specifically addresses rights regarding denominational schools and separate schools...
, which confirms the rights of religious schools are preserved.
- Section 30
Section Thirty of the Canadian Charter of Rights and Freedoms is a section of the Charter that, like other provisions within the section 25 to section 31 bloc, provides a guide as to how Charter rights should be interpreted and applied by Canadian courts. Section 30's particular role is to address...
, which clarifies the applicability of the Charter in the territories.
- Section 31
Section Thirty-one of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada, which clarifies that the Charter does not increase the powers of either the federal government or the legislatures of the provinces of Canada...
, which confirms that the Charter does not extend the rights of legislatures.
Finally,
section 34Section Thirty-four of the Canadian Charter of Rights and Freedoms is the last section of Canada's Charter of Rights, which is entrenched in the Constitution Act, 1982. Section 34 provides guidance for the legal citation of the Charter....
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 speechFreedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
,
habeas corpus is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
and the
presumption of innocenceThe presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
, have their roots in a set of Canadian laws and legal precedents sometimes known as the
Implied Bill of RightsThe Implied Bill of Rights is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada...
. Many of these rights were also included in the
Canadian Bill of RightsThe Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
, which the
Canadian ParliamentThe Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
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. The Bill of Rights did not contain all of the rights that are now included in the Charter, omitting, for instance, the
right to voteSuffrage, political franchise, or simply the franchise, distinct from mere voting rights, is the civil right to vote gained through the democratic process...
and
freedom of movementFreedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
within Canada.
The centennial of
Canadian ConfederationCanadian Confederation was the process by which the federal Dominion of Canada was formed on July 1, 1867. On that day, three British colonies were formed into four Canadian provinces...
in 1967 aroused greater interest within the government in constitutional reform. Such reforms would include improving safeguards of rights, as well as
patriationPatriation is a non-legal term used in Canada to describe a process of constitutional change also known as "homecoming" of the constitution. Up until 1982, Canada was governed by a constitution that was a British law and could be changed only by an Act of the British Parliament...
of the Constitution, meaning the
British ParliamentThe Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
would no longer have to approve
constitutional amendmentA constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
s. Subsequently, Attorney General
Pierre TrudeauJoseph Philippe Pierre Yves Elliott Trudeau, , usually known as Pierre Trudeau or Pierre Elliott Trudeau, was the 15th Prime Minister of Canada from April 20, 1968 to June 4, 1979, and again from March 3, 1980 to June 30, 1984.Trudeau began his political career campaigning for socialist ideals,...
appointed law professor
Barry StrayerBarry Lee Strayer, OC was a Justice on the Canadian Federal Court of Appeal and is currently a Deputy Judge on the Federal Court of Canada. He is known as one of the instrumental drafters of the Canadian Charter of Rights and Freedoms.In 1959, Strayer graduated from the faculty of law at the...
to research a potential bill of rights. While writing his report, Strayer consulted with a number of notable legal scholars, including
Walter TarnopolskyJustice Walter Surma Tarnopolsky was a Canadian judge, legal scholar, and pioneer in the development of human rights law and civil liberties in Canada.-Background and education:...
. 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 Charter's 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
LiberalThe Liberal Party of Canada , colloquially known as the Grits, is the oldest federally registered party in Canada. In the conventional political spectrum, the party sits between the centre and the centre-left. Historically the Liberal Party has positioned itself to the left of the Conservative...
leader and prime minister in 1968, still very much wanted a constitutional bill of rights. The federal government and the
provincesThe provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
discussed creating one during negotiations for patriation, which resulted in the
Victoria CharterThe Victoria Charter was a set of proposed amendments to the Constitution of Canada in 1971. This document represented a failed attempt on the part of Prime Minister Pierre Trudeau to patriate the Constitution, add rights and freedoms to it and entrench English and French as Canada's official...
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 referendumThe 1980 Quebec referendum was the first referendum in Quebec on the place of Quebec within Canada and whether Quebec should pursue a path toward sovereignty. The referendum was called by Quebec's Parti Québécois government, which strongly favoured secession from Canada...
. He would succeed in 1982 with the passage of the
Canada Act 1982The Canada Act 1982 is an Act of the Parliament of the United Kingdom that was passed at the request of the Canadian federal government to "patriate" Canada's constitution, ending the necessity for the country to request certain types of amendment to the Constitution of Canada to be made by the...
. 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,
equalitySocial equality is a social state of affairs in which all people within a specific society or isolated group have the same status in a certain respect. At the very least, social equality includes equal rights under the law, such as security, voting rights, freedom of speech and assembly, and the...
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 ConservativeThe Progressive Conservative Party of Canada was a Canadian political party with a centre-right stance on economic issues and, after the 1970s, a centrist stance on social issues....
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
SenatorsThe Senate of Canada is a component of the Parliament of Canada, along with the House of Commons, and the monarch . The Senate consists of 105 members appointed by the governor general on the advice of the prime minister...
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
advocacy groupAdvocacy groups use various forms of advocacy to influence public opinion and/or policy; they have played and continue to play an important part in the development of political and social systems...
s put forward their perceptions on the Charter's 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 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
multiculturalismMulticulturalism is the appreciation, acceptance or promotion of multiple cultures, applied to the demographic make-up of a specific place, usually at the organizational level, e.g...
. 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 ReferenceReference re a Resolution to amend the Constitution, [1981] 1 S.C.R. 753 – also known as the Patriation Reference – is a historic Supreme Court of Canada reference case that occurred during negotiations for the patriation of the Constitution of Canada.The Court affirmed the existence of...
(1981), the
Supreme Court of CanadaThe Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
had ruled there was a tradition that some provincial approval should be sought for constitutional reform. As the provinces still had doubts about the Charter's 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 ChrétienJoseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....
, Ontario's justice minister
Roy McMurtryRoland "Roy" McMurtry, OC, OOnt is a judge and former politician in Ontario, Canada and the current Chancellor of York University.-Early life:McMurtry was born in Toronto and educated at St. Andrew's College, graduating in 1950...
and Saskatchewan's justice minister
Roy RomanowRoy John Romanow, PC, OC, QC, SOM is a Canadian politician and the 12th Premier of Saskatchewan ....
. Pressure from provincial governments (which in Canada have jurisdiction over property) and from the country's
left wingIn politics, Left, left-wing and leftist generally refer to support for social change to create a more egalitarian society...
, especially the
New Democratic PartyThe New Democratic Party , commonly referred to as the NDP, is a federal social-democratic political party in Canada. The interim leader of the NDP is Nycole Turmel who was appointed to the position due to the illness of Jack Layton, who died on August 22, 2011. The provincial wings of the NDP in...
, also prevented Trudeau from including any rights protecting private property.
Nevertheless, Quebec did not support the Charter (or the Canada Act 1982), with "conflicting interpretations" as to why. The opposition could have owed to the
Parti QuébécoisThe Parti Québécois is a centre-left political party that advocates national sovereignty for the province of Quebec and secession from Canada. The Party traditionally has support from the labour movement. Unlike many other social-democratic parties, its ties with the labour movement are informal...
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 (the
Meech Lake AccordThe Meech Lake Accord was a package of proposed amendments to the Constitution of Canada negotiated in 1987 by Prime Minister Brian Mulroney and ten provincial premiers. It was intended to persuade the government of the Province of Quebec to endorse the 1982 Canadian Constitution and increase...
and
Charlottetown AccordThe Charlottetown Accord was a package of proposed amendments to the Constitution of Canada, proposed by the Canadian federal and provincial governments in 1992. It was submitted to a public referendum on October 26 of that year, and was defeated.-Background:...
) 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 (section 15) 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 typography of the physical document pictured here, and still distributed today, was typeset by Ottawa's
David BermanDavid Berman is a Canadian communication designer and author, Fellow and Ethics Chair of the Society of Graphic Designers of Canada, vice-president/treasurer/Sustainability Chair of Icograda, President of the first elected board of the Association of Registered Graphic Designers of Ontario, and an...
intentionally in Carl Dair's
CartierCartier is a family of serif old style typefaces designed by Carl Dair in 1967, who was commissioned by the Governor General of Canada-in-Council to create a new and distinctively Canadian typeface...
typeface: at the time the most prominent Canadian typeface, having been commissioned by the Governor-General as a celebration of Canada's centenary in 1967.
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 AmendmentSince the Constitution of Canada was patriated, in 1982, only ten minor Amendments to the Constitution of Canada have been passed. There have, however, been a number of unsuccessful attempts to amend the Constitution under the new amending formula....
in 1986–1987, which would have enshrined
fetal rightsFetal rights is a term used in some countries in reference to legislation that grants legal rights to fetuses. The term is used most often in the context of the abortion debate, as the basis for an argument in support of the pro-life stance....
, failed in the federal Parliament. Other proposed amendments to the Constitution, included in the
Charlottetown AccordThe Charlottetown Accord was a package of proposed amendments to the Constitution of Canada, proposed by the Canadian federal and provincial governments in 1992. It was submitted to a public referendum on October 26 of that year, and was defeated.-Background:...
of 1992, were never passed. These amendments would have specifically required the Charter to be interpreted in a manner respectful of Quebec's
distinct societyDistinct society is a political term especially used during constitutional debate in Canada, in the second half of the 1980s and in the early 1990s, and present in the two failed constitutional amendments, the Meech Lake Accord and the Charlottetown Accord...
, and would have added further statements to the
Constitution Act, 1867The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
regarding racial and sexual equality and collective rights, and about
minority languageA minority language is a language spoken by a minority of the population of a territory. Such people are termed linguistic minorities or language minorities.-International politics:...
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 Charter's 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 CanadaThe Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
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. MorgentalerR. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...
(1988), which struck down
Canada's abortion lawAbortion in Canada is not limited by the law . While some non-legal obstacles exist, Canada is one of only a few nations with no legal restrictions on abortion. Regulations and accessibility vary between provinces....
, and
Vriend v. AlbertaVriend v. Alberta [1998] 1 S.C.R. 493 is an important Supreme Court of Canada case that determined that a legislative omission can be the subject of a Charter violation...
(1998), in which the Supreme Court found the province's exclusion of
homosexualsHomosexuality is romantic or sexual attraction or behavior between members of the same sex or gender. As a sexual orientation, homosexuality refers to "an enduring pattern of or disposition to experience sexual, affectional, or romantic attractions" primarily or exclusively to people of the same...
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 lawThe criminal law of Canada is under the exclusive legislative jurisdiction of the federal government. The power to enact criminal law is derived from section 91 of the Constitution Act, 1867...
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)Doucet-Boudreau v. Nova Scotia [2003] 3 S.C.R. 3, 2003 SCC 62, was a decision of the Supreme Court of Canada which followed the Nova Scotia Supreme Court's finding that a delay in building French language schools in Nova Scotia violated the claimants' minority language educational rights under...
). A government may also raise questions of rights by submitting
reference questionIn Canadian law, a Reference Question is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question concerns the constitutionality of legislation....
s to higher-level courts; for example, Prime Minister
Paul MartinPaul Edgar Philippe Martin, PC , also known as Paul Martin, Jr. is a Canadian politician who was the 21st Prime Minister of Canada, as well as leader of the Liberal Party of Canada....
's government approached the Supreme Court with Charter questions as well as federalism concerns in the case
Re Same-Sex MarriageReference re Same-Sex Marriage [2004] 3 S.C.R. 698, 2004 SCC 79, was a reference question to the Supreme Court of Canada regarding the constitutional validity of same-sex marriage in Canada...
(2004). Provinces may also do this with their superior courts. The government of
Prince Edward IslandPrince Edward Island is a Canadian province consisting of an island of the same name, as well as other islands. The maritime province is the smallest in the nation in both land area and population...
initiated the
Provincial Judges ReferenceThe Provincial Judges Reference [1997] 3 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of provincial court judges...
by asking its provincial Supreme Court a question on
judicial independenceJudicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
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. OakesR. v. Oakes [1986] 1 S.C.R. 103 is a case decided by the Supreme Court of Canada which established the famous Oakes test, an analysis of the limitations clause of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be...
(1986), and the (now defunct)
Law test for section 15, developed in
Law v. Canada (1999). Since
Re B.C. Motor Vehicle ActReference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia Motor Vehicle Act...
(1985), various approaches to defining and expanding the scope of
fundamental justiceFundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
(the Canadian name for
natural justiceNatural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
or
due processDue process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
) under section 7 have been adopted. (
For more information, see the articles on each Charter section).
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 HoggPeter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
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
Ted MortonFrederick Lee Morton , known commonly as Ted Morton, is a Canadian politician and Minister of Energy for the Province of Alberta. As a Member of the Legislative Assembly of Alberta he represents the constituency of Foothills-Rocky View as a Progressive Conservative...
and political scientist
Rainer KnopffRainer Knopff is a writer, professor of political science at the University of Calgary, Canada, and member of a group known as the Calgary School. He especially well-known for his views about the influence of judicial decisions on Canadian public policy...
have been very critical of this phenomenon. Although they feel the basis for the approach, the
living tree doctrineIn Canadian law, the living tree doctrine is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times....
(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-incriminationSelf-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
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 RightsThe Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
, 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."
Public interest groups frequently
interveneIn law, intervention is a procedure to allow a nonparty, called intervenor to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants...
in cases to make arguments on how to interpret the Charter. Some examples are the
British Columbia Civil Liberties AssociationThe British Columbia Civil Liberties Association or BCCLA is a non-government organization in British Columbia, Canada dedicated to the preservation, maintenance and extension of civil liberties and human rights in Canada....
,
Canadian Civil Liberties AssociationThe Canadian Civil Liberties Association or CCLA, is Canada's leading national organization devoted to the defence of civil liberties and constitutional rights, both inside and outside the courts. The organization's work focuses on constitutional litigation, law reform, advocating on civil...
, the
Canadian Mental Health AssociationThe Canadian Mental Health Association was founded on January 26, 1918 by Dr. Clarence M. Hincks and Clifford W. Beers. Originally named the Canadian National Committee for Mental Hygiene, it is one of the oldest voluntary health organizations still operating in Canada.Each year, CMHA divisions...
, the
Canadian Labour CongressThe Canadian Labour Congress, or CLC is a national trade union centre, the central labour body in English Canada to which most Canadian labour unions are affiliated.- Formation :...
, the
Women's Legal Education and Action FundWomen's Legal Education and Action Fund, referred to by the acronym LEAF, is a Canadian legal organization that performs legal research and intervenes in appellate and Supreme Court of Canada cases on women's issues...
(LEAF), and
REAL Women of CanadaREAL Women of Canada is a socially conservative lobby group in Canada. The organization was founded in 1983.REAL stands for "Realistic, Equal, Active, for Life". The group believes that the nuclear family is the most important unit in Canadian society, and that the fragmentation of the Canadian...
. The purpose of such interventions is to assist the court and to attempt to influence the court to render a decision favourable to the legal interests of the group.
A further approach to the Charter, taken by the courts, is the
dialogue principleIn Canadian constitutional law, the dialogue principle is an approach to the interpretation of the Canadian Charter of Rights and Freedoms where judicial review of legislation is said to be part of a "dialogue" between the legislatures and the courts...
, 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 documents
Some Canadian
Members of ParliamentA Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
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 RightsThe Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
(ECHR) 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
Human Rights Act 1998The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
, which allows the ECHR to be enforced directly in domestic courts, 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. 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 RightsThe European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
cases.
The core distinction between the
United States Bill of RightsThe Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
and Canadian Charter is the existence of the limitations and notwithstanding clauses. Canadian courts have consequently interpreted 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 (in section 7 of the Canadian Charter) is therefore interpreted to include more legal protections than
due processDue process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
, 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 ConstitutionThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
's freedom of speech. In
RWDSU v. Dolphin Delivery Ltd.RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, is the seminal Canadian Charter of Rights and Freedoms decision that states that the Charter applies to governmental action, and to the common law except where matters are solely between private parties...
(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 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
EnglishEnglish is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
on signs and has upheld
publication banA publication ban is a court order which prohibits the public or media from disseminating certain details of an otherwise public judicial procedure. In Canada, publication bans are most commonly issued when the safety or reputation of a victim or witness may be hindered by having their identity...
s that prohibit media from mentioning the names of juvenile criminals.
Section 28 of the Charter performs a function similar to that of the unratified
Equal Rights AmendmentThe Equal Rights Amendment was a proposed amendment to the United States Constitution. The ERA was originally written by Alice Paul and, in 1923, it was introduced in the Congress for the first time...
in the US. While that proposed amendment had many critics, 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 RightsThe International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
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 aidLegal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
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 FreedomsThe Charter of Human Rights and Freedoms is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975...
and with the
International Covenant on Economic, Social and Cultural RightsThe International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976...
. 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 livingStandard of living is generally measured by standards such as real income per person and poverty rate. Other measures such as access and quality of health care, income growth inequality and educational standards are also used. Examples are access to certain goods , or measures of health such as...
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 questionIn American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...
s and adding that as
positive rightsPhilosophers and political scientists make a distinction between negative and positive rights . According to this view, positive rights permit or oblige action, whereas negative rights permit or oblige inaction. These permissions or obligations may be of either a legal or moral character...
, economic rights are of questionable legitimacy.
The Charter itself influenced the
Bill of RightsChapter Two of the Constitution of South Africa contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa...
in the
Constitution of South AfricaThe Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
. The limitations clause under section 36 of the South African law has been compared to section 1 of that
Charter.
The Charter and national values
The Charter was intended to be a source for
national valuesA personal or cultural value is an absolute or relative ethical value, the assumption of which can be the basis for ethical action. A value system is a set of consistent values and measures. A principle value is a foundation upon which other values and measures of integrity are based...
and national unity. As Professor
Alan CairnsHugh Alan Craig Cairns, is a Canadian political science professor emeritus.Born in Galt , he received his BA in 1953 and his MA degree in 1957 from the University of Toronto. In 1963, he obtained a D.Phil from St Antony's College, Oxford...
noted, "The initial federal government premise was on developing a pan-Canadian identity." 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 Charter's unifying purpose was particularly important to the mobility and language rights. According to author
Rand DyckDr. Perry Rand Dyck, B.A., M.A., Ph.D. Professor Emeritus, Laurentian University is the author of the Canadian Politics: Critical Approaches textbook which is used in many Canadian Universities, and taught to students studying Political Science, Law, Economics, Women's Studies, Philosophy,...
, 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 CanadianFrench Canadian or Francophone Canadian, , generally refers to the descendents of French colonists who arrived in New France in the 17th and 18th centuries...
s, 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 (the only province where they form the majority and where most of their population is based), 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 OntarioThe Premier of Ontario is the first Minister of the Crown for the Canadian province of Ontario. The Premier is appointed as the province's head of government by the Lieutenant Governor of Ontario, and presides over the Executive council, or Cabinet. The Executive Council Act The Premier of Ontario...
Bob RaeRobert Keith "Bob" Rae, PC, OC, OOnt, QC, MP is a Canadian politician. He is the Member of Parliament for Toronto Centre and interim leader of the Liberal Party of Canada....
has stated that the Charter "functions as a symbol for all Canadians" in practice because it represents the core value of freedom. Academic
Peter RussellPeter H. Russell is a writer and Professor Emeritus of political science at the University of Toronto, Canada, where he taught from 1958-1997. He was a Member of the Toronto Chapter of Alpha Delta Phi. He was the Principal of Innis College, at the University of Toronto, from 1973 to 1978...
has been more skeptical of the Charter's 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. It has also been noted that issues like
abortionAbortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
and
pornographyPornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
, raised by the Charter, tend to be controversial. Still, opinion polls in 2002 showed Canadians felt the Charter significantly represented Canada, although many were unaware of the document's actual contents.
The only values mentioned by the
Charter's preambleThe preamble to the Canadian Charter of Rights and Freedoms is the introductory sentence to the Constitution of Canada's Charter of Rights and Constitution Act, 1982...
are recognition for the supremacy of
GodSeveral national constitutions make reference to God, most often in the preamble. Such invocationes or nominationes dei are found notably in several European constitutional traditions and in the constitutions of Islamic countries.In constitutional...
and the
rule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
, but these have been controversial and of minor legal consequence. In 1999, MP
Svend RobinsonSvend Robinson is a former Canadian politician. He was a Member of Parliament in the Canadian House of Commons from 1979 to 2004, representing the suburban Vancouver-area constituency of Burnaby for the New Democratic Party...
brought forward a failed proposal before the
Canadian House of CommonsThe House of Commons of Canada is a component of the Parliament of Canada, along with the Sovereign and the Senate. The House of Commons is a democratically elected body, consisting of 308 members known as Members of Parliament...
that would have amended the Charter by removing the mention of God, as he felt it did not reflect Canada's diversity.
Section 27 also recognizes a value of multiculturalism. In 2002, polls found 86% of Canadians approved of this section.
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, the document has also been subject to published criticisms from both sides of the political spectrum. One left-wing critic is Professor
Michael MandelMichael Mandel LL.B, BCL, is a Canadian legal academic, specializing in criminal law with a particular interest in criminal sentencing. He was a part of the Osgoode Hall Law School's faculty since 1974 having also graduated from Osgoode with his LL.B....
, who wrote that in comparison to politicians, judges do not have to be as sensitive to the will of the electorate, nor do they have to make sure their decisions are easily understandable to the average Canadian citizen. This, in Mandel's view, limits democracy. Mandel has also asserted that the Charter makes Canada more like the United States, especially by serving corporate rights and
individual rightsGroup rights are rights held by a group rather than by its members separately, or rights held only by individuals within the specified group; in contrast, individual rights are rights held by individual people regardless of their group membership or lack thereof...
rather than group rights and social rights. He has argued that there are several rights that should be included in the Charter, such as a right to health care and a basic right to free education. Hence, the perceived
AmericanizationAmericanization is the influence of the United States on the popular culture, technology, business practices, or political techniques of other countries. The term has been used since at least 1907. Inside the U.S...
of Canadian politics is seen as coming at the expense of values more important for Canadians. The union movement has been disappointed in the reluctance of the courts to use the Charter to support various forms of union activity, such as the "right to strike".
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
ChrétienJoseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....
governments of funding litigious groups. For example, these governments used the
Court Challenges ProgramThe Court Challenges Program of Canada is a non-profit organization whose stated purpose is "to provide financial assistance for important court cases that advance language and equality rights guaranteed under Canada's Constitution"....
to support minority language educational rights claims. Morton and Knopff also claim that
crown counselCrown Attorneys or Crown Counsel are the prosecutors in the legal system of Canada.Crown Attorneys represent the Crown and act as prosecutor in proceedings under the Criminal Code of Canada...
have intentionally lost cases in which the government was taken to court for allegedly violating rights, particularly gay rights and
women's rightsWomen's rights are entitlements and freedoms claimed for women and girls of all ages in many societies.In some places these rights are institutionalized or supported by law, local custom, and behaviour, whereas in others they may be ignored or suppressed...
.
Political scientist
Rand DyckDr. Perry Rand Dyck, B.A., M.A., Ph.D. Professor Emeritus, Laurentian University is the author of the Canadian Politics: Critical Approaches textbook which is used in many Canadian Universities, and taught to students studying Political Science, Law, Economics, Women's Studies, Philosophy,...
, 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 BlattbergCharles Blattberg is a professor of political philosophy at the Université de Montréal. Blattberg grew up in Toronto and completed his undergraduate degree at the University of Toronto, where he also served as president of its Students’ Administrative Council during the 1989–90 academic...
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" (less abstract) than rights.
See also
- Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
- Canadian Human Rights Act
The Canadian Human Rights Act is a statute originally passed by the Parliament of Canada in 1977 with the express goal of extending the law to ensure equal opportunity to individuals who may be victims of discriminatory practices based on a set prohibited grounds such as gender, disability, or...
- History of Canada
The history of Canada covers the period from the arrival of Paleo-Indians thousands of years ago to the present day. Canada has been inhabited for millennia by distinctive groups of Aboriginal peoples, among whom evolved trade networks, spiritual beliefs, and social hierarchies...
- Human rights in Canada
Since signing the Universal Declaration of Human Rights in 1948, the Canadian government has attempted to make universal human rights a part of Canadian law...
- Quebec Charter of Human Rights and Freedoms
The Charter of Human Rights and Freedoms is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975...
- Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
- Veterans' Bill of Rights
The Veterans' Bill of Rights is a bill of rights in Canada for veterans of the Canadian Forces and Royal Canadian Mounted Police. It was enacted by the federal government in 2007...
Further reading
External links