Section Thirty-one of the Canadian Charter of Rights and Freedoms
Encyclopedia
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
. As a result, only the courts
may enforce the rights in the Charter.
The section reads,
notes, this shows the Charter does not disturb the balance of the distribution of legislative powers
under the Constitution Act, 1867
. Constitutional scholar Peter Hogg
has called section 31 a "cautionary provision." He specifically notes that section 31 denies the federal Parliament of Canada
any additional powers. Indeed, section 31 is a departure from the education
al rights in the Constitution Act, 1867. Section 93(4) of that Act gives the federal Parliament the power to intervene if a provincial government fails to respect certain rights. The federal government could then pass and enforce laws that would uphold the rights.
The adoption of section 31 was probably meant to avoid an unfavourable reaction against the Charter from the provinces. The provinces had opposed the Charter because of the potential limits on their powers, but the opposition would have been stronger had Parliament been able to exert its authority over the provinces.
As Hogg notes, section 31 also distinguishes the Charter from various rights in the amendments to the United States Constitution. In the United States
, the federal Congress has the authority to enforce various rights, including those in the Thirteenth Amendment
, which prohibits slavery
, the Fourteenth Amendment
, which binds the states to respect due process
, and the Fifteenth Amendment
, which contains a partial right to vote.
While section 31 denies remedial powers in respect of the Charter for Parliament and the legislatures, the courts receive this authority through section 24
and section 52 of the Constitution Act, 1982
.
in that if federalism means both the central and regional authorities are sovereign, the central authority should not be able to intervene to change a regional act. The Constitution Act, 1867 allows for this in regard to educational rights because in 1867 Canada was not designed to be a truly federal country. However, Parliament has never exercised its educational powers and it is now generally expected the federal government would not act that way.
, made reference to section 31. A lower court had found federal legislation compelling the observance of the Christian
Sabbath to be not only a breach of section 2
of the Charter (freedom of religion
), but also outside Parliament's criminal law authority under the division of powers, despite earlier findings that morality
could guide the definition of criminal law. As the lower court argued, the circumstances and values of the day no longer supported the view that Christianity can guide what constitutes valid criminal law. The Court of Appeal, however, overturned the finding on the division of powers. The Court of Appeal argued that the finding that new circumstances and values limited the scope of criminal law constituted "a redistribution of legislative powers in Canada" that section 31 guards against. The Court of Appeal added that it was also the intention that the Charter would not affect the division of powers, and went on to speculate that otherwise the Charter would create an "odd" situation in which a legislative body could unilaterally change the distribution of powers by reclaiming the powers it had lost under the Charter, by invoking the notwithstanding clause
.
In 2001, the Federal Court decided against claims that section 30
of the Charter should mean territories should be treated generally like provinces. The Court pointed to section 31, saying section 30 cannot increase the powers of the territorial legislature to the extent that a territory can achieve equality with the provinces.
Constitution of Canada
The 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...
, which clarifies that the Charter
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
does not increase the powers of either the federal government or the legislatures of the provinces of Canada
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
. As a result, only the courts
Court system of Canada
The 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....
may enforce the rights in the Charter.
The section reads,
Enforcement of the Charter
As the government of CanadaGovernment of Canada
The 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...
notes, this shows the Charter does not disturb the balance of the distribution of legislative powers
Canadian federalism
Canada 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...
under the Constitution Act, 1867
Constitution Act, 1867
The 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...
. Constitutional scholar Peter Hogg
Peter Hogg
Peter 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 called section 31 a "cautionary provision." He specifically notes that section 31 denies the federal Parliament of Canada
Parliament of Canada
The 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...
any additional powers. Indeed, section 31 is a departure from the education
Education in Canada
Education 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...
al rights in the Constitution Act, 1867. Section 93(4) of that Act gives the federal Parliament the power to intervene if a provincial government fails to respect certain rights. The federal government could then pass and enforce laws that would uphold the rights.
The adoption of section 31 was probably meant to avoid an unfavourable reaction against the Charter from the provinces. The provinces had opposed the Charter because of the potential limits on their powers, but the opposition would have been stronger had Parliament been able to exert its authority over the provinces.
As Hogg notes, section 31 also distinguishes the Charter from various rights in the amendments to the United States Constitution. In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the federal Congress has the authority to enforce various rights, including those in the Thirteenth Amendment
Thirteenth Amendment to the United States Constitution
The Thirteenth Amendment to the United States Constitution officially abolished and continues to prohibit slavery and involuntary servitude, except as punishment for a crime. It was passed by the Senate on April 8, 1864, passed by the House on January 31, 1865, and adopted on December 6, 1865. On...
, which prohibits slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
, the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, which binds the states to respect due process
Due process
Due 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...
, and the Fifteenth Amendment
Fifteenth Amendment to the United States Constitution
The Fifteenth Amendment to the United States Constitution prohibits each government in the United States from denying a citizen the right to vote based on that citizen's "race, color, or previous condition of servitude"...
, which contains a partial right to vote.
While section 31 denies remedial powers in respect of the Charter for Parliament and the legislatures, the courts receive this authority through section 24
Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
and section 52 of the Constitution Act, 1982
Constitution Act, 1982
The 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...
.
Federalism
Section 31 is related to the theory of federalismFederalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
in that if federalism means both the central and regional authorities are sovereign, the central authority should not be able to intervene to change a regional act. The Constitution Act, 1867 allows for this in regard to educational rights because in 1867 Canada was not designed to be a truly federal country. However, Parliament has never exercised its educational powers and it is now generally expected the federal government would not act that way.
Judicial interpretation
In 1984, the Alberta Court of Appeal, in making its ruling on R. v. Big M Drug Mart Ltd.R. v. Big M Drug Mart Ltd.
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, is a landmark decision by Supreme Court of Canada where the Court struck down the Lord's Day Act for violating section 2 of the Canadian Charter of Rights and Freedoms...
, made reference to section 31. A lower court had found federal legislation compelling the observance of the Christian
Christianity
Christianity is a monotheistic religion based on the life and teachings of Jesus as presented in canonical gospels and other New Testament writings...
Sabbath to be not only a breach of section 2
Section Two of the Canadian Charter of Rights and Freedoms
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...
of the Charter (freedom of religion
Freedom of religion
Freedom 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...
), but also outside Parliament's criminal law authority under the division of powers, despite earlier findings that morality
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
could guide the definition of criminal law. As the lower court argued, the circumstances and values of the day no longer supported the view that Christianity can guide what constitutes valid criminal law. The Court of Appeal, however, overturned the finding on the division of powers. The Court of Appeal argued that the finding that new circumstances and values limited the scope of criminal law constituted "a redistribution of legislative powers in Canada" that section 31 guards against. The Court of Appeal added that it was also the intention that the Charter would not affect the division of powers, and went on to speculate that otherwise the Charter would create an "odd" situation in which a legislative body could unilaterally change the distribution of powers by reclaiming the powers it had lost under the Charter, by invoking the notwithstanding clause
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section 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...
.
In 2001, the Federal Court decided against claims that section 30
Section Thirty of the Canadian Charter of Rights and Freedoms
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...
of the Charter should mean territories should be treated generally like provinces. The Court pointed to section 31, saying section 30 cannot increase the powers of the territorial legislature to the extent that a territory can achieve equality with the provinces.