Canadian Charter of Rights and Freedoms
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The Canadian Charter of Rights and Freedoms is a constitutionally entrenched bill of rights which forms part of the Constitution Act, 1982, added to the Constitution of Canada in 1982. Its purpose is to protect rights of Canadian citizens from actions and policies of all levels of government. Its precursor, The Canadian Bill of Rights, 1960, introduced by the Diefenbaker government, had a far more limited scope and was easily amendable. The Charter was drafted by Justice Barry Strayer on appointment by Justice Minister Pierre Trudeau, in consultation with a broad spectrum of legal scolars and practitioners. The resulting document was largely inspired by the human rights and freedoms movement as enunciated in the Universal Declaration of Human Rights.
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Features of the Charter
All people enjoy certain fundamental freedoms (under section 2), namely freedom of religion, freedom of thought, freedom of expression and freedom of the press, peaceful assembly, and freedom of association; all subject to the reasonable limitations clause (section 1) and the notwithstanding clause (section 33).
Under the Charter all individuals also enjoy the following rights:
- democratic rights: the right to participate in political activities, to vote and to be elected to political office and similar rights:
- Section 3: right to vote and serve as member of a legislature
- Section 4: maximum duration of legislature
- Section 5: annual sitting required
- mobility rights (section 6): the right to enter and leave Canada, and to move to and take up residence in any province or to reside outside Canada
- legal rights: the right to be presumed innocent until proven guilty, the right to retain a lawyer and to be informed of that right, and the right to an interpreter in a court proceeding are examples. In full, they are:
- Section 7: life, liberty, and security of the person
- Section 8: unreasonable search and seizure prohibited
- Section 9: arbitrary detention prohibited
- Section 10: rights on arrest or detention
- Section 11: rights in criminal and penal matters
- Section 12: cruel and unusual punishment prohibited
- Section 13: right not to incriminate oneself
- Section 14: right to an interpreter
| Canadian Charter of Rights and Freedoms |
| Guarantee of Rights and Freedoms |
| 1 |
| Fundamental Freedoms |
| 2 |
| Democratic Rights |
| 3, 4, 5 |
| Mobility Rights |
| 6 |
| Legal Rights |
| 7, 8, 9, 10, 11, 12, 13, 14 |
| Equality Rights |
| 15 |
| Official Languages of Canada |
| 16, 16.1, 17, 18, 19, 20, 21, 22 |
| Minority Language Education Rights |
| 23 |
| Enforcement |
| 24 |
| General |
| 25, 26, 27, 28, 29, 30, 31 |
| Application of Charter |
| 32, 33 |
| Citation |
| 34 |
- equality rights (section 15): equal treatment before and under the law, and equal protection and benefit of the law without discrimination
- language rights: generally, the right to use either the English or French languages in communications with Canada's federal government and certain provincial governments. Specifically, these rights include:
- Section 16: English and French as official languages of Canada and New Brunswick
- Section 16.1: English New Brunswick and French New Brunswick are equal
- Section 17: right to use either official language in Parliament and the NB legislature
- Section 18: statutes and proceedings of Parliament and the NB legislature to be printed in both official languages
- Section 19: both official languages may be used in federal and NB courts
- Section 20: right to communicate with and be served by the federal and NB governments in either official language
- Section 21: existing constitutional provisions continued
- Section 22: existing rights to use other languages not affected
- minority language education rights (Section 23): generally, French and English-speaking minorities in every province and territory have the right to be educated in their own language
The so-called notwithstanding clause (section 33 of the Charter) authorizes governments to temporarily override certain individual rights for up to five years, subject to renewal. It has never been invoked by the Canadian federal government, and some have speculated that its use would be politically costly. The notwithstanding clause has been invoked repeatedly by the province of Quebec, which has never ratified the Charter but is subject to it nonetheless. The provinces of Saskatchewan and Alberta have also invoked the notwithstanding clause, to protect back-to-work legislation and an exclusively heterosexual definition of marriage, respectively.
Other sections that help understand how the Charter works in practice include:
- Section 24: enforcement of Charter rights
- Section 25: the Charter does not derogate existing Aboriginal rights and freedoms
- Section 26: other rights and freedoms in Canada not affected
- Section 27: Charter to be interpreted in a multicultural context
- Section 28: all Charter rights guaranteed equally to men and women
- Section 29: rights of religious schools preserved
- Section 30: references to provinces include territories
- Section 31: The Charter does not extend the rights of legislatures
- Section 32: application of the Charter
- Section 34: citation (ie., this section 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 of the Charter
The inclusion of a charter of rights in the constitution was a much debated issue. Prime Minister Pierre Trudeau very much wanted it but many of the provincial leaders did not. Trudeau thus was forced to include the notwithstanding clause to allow provinces to opt out of certain areas of the charter. Pressure from the left in the country, especially the New Democratic Party, prevented Trudeau from including any rights protecting private property.
Before the Charter came into effect, other Canadian laws and legal precedents protected many of the rights and freedoms that are protected under the Charter. These were sometimes known as the Implied Bill of Rights. The Canadian Bill of Rights, which the Canadian Parliament enacted in 1960 had many of these rights, but it was only applicable to the federal government as, unlike the Charter, it was not part of the Constitution of Canada. It was also a simple act of Parliament rather than a constitutional amendment, and thus did not empower the courts to review and strike down contrary laws.
While the Charter was adopted in 1982, it was not until three years later in 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.
Comparison with other human rights instruments
Some Members of Parliament saw the movement to entrench a charter as contrary to the British model of Parliamentary supremacy. Ironically, some would say that the European Convention on Human Rights has now limited British parliamentary power to a greater degree than the Canadian Charter limited the power of the Canadian Parliament and provincial legislatures when it was adopted in 1982.
It is no accident that the Canadian Charter is similar to the European Convention on Human Rights (ECHR), specifically in relation to the limitations clauses contained the European Convention. The underlying reason for this fundamental similarity between the ECHR and the Charter lies in the fact that the Canadian Charter and the European Convention are both inspired by the Universal Declaration of Human Rights. It is because of this similarity with European Human Rights law that the Supreme Court of Canada turns not only to the Constitution of the United States case law but also the European Court of Human Rights cases in interpreting the Charter.
The Charter limitations clause states:
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as hate speech and obscenity. It has also been used to protect the unreasonable interference of government in the lives of people in a free and democratic society by defining these limits.
Regarding similarities with the ECHR there are various limitations in the European Convention that are similar to the limitations clause in the Charter. These limits include:
- limits on public trial rights that have also been recognized by the Canadian courts (art. 6(1) ECHR);
- limits on privacy rights as are accepted as in Canada (Article 8(2) ECHR: except such as is in accordance with the law and is necessary in a democratic society);
- limits on freedom of thought and religion similar to Canadian limitations(art. 9(2) ECHR: subject only to such limitations as are prescribed by law and are necessary in a democratic society);
- limits on freedom of expression are accepted as in Canada (art. 9(2) ECHR: subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society);
- limits on freedom of peaceable assembly and free association are accepted in Canada as well (art. 11(2) ECHR: No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society).
However, unlike the Canadian Charter art. 18 of the European Convention limits all these specifically enumerated restrictions: The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed. Perhaps the Canadian Charter's single overriding limitation upon all of the enumerated rights is much more general limitation than the specific limitations in the European Convention. This general limitations clause definitely makes the Canadian Charter distinct from its American counterpart.
Extensions of rights
The Charter has also been interpreted by the courts, especially lower courts in the provinces, to extend rights and freedoms into areas that are not explicit in the Charter. For example, although the definition of civil marriage in Canada falls under federal jurisdiction (unlike the United States), some have viewed the legislative challenges implicit in the Charter as an issue of provincial/federal jurisdiction, and have been critical of what is perceived as judicial activism. Since there is no denying that opposite-sex marriage-only is untenable on Charter grounds, the accusation of judicial activism is seen by most Canadians as a partisan argument, since various political parties have availed themselves of this judicial activism when it has been politic for them to do so.
Another case where rights and freedoms were interpreted, though far less controversial, was Sandra Bell v. City of Toronto, in which Judge Fairgrieve held on Charter grounds that Canadian citizens were entitled to naturalize the land and create wild gardens resembling the original terrain with native plants, regardless of any aesthetic dictates of city or provincial or federal statutes. This was held to be part of freedom of expression. The case was supported by the Canadian Environmental Law Association.
Neither of these extensions was actually tested at the Supreme Court level.
See also
Bibliography
- Hogg, P. W., Constitutional law of Canada 4th ed. (Carswell: Scarborough) with Supplement to Constitutional Law of Canada (2002-)
- Humphrey, J.P., Human Rights and the United Nations: A Great Adventure (New York: Transnational Publishers, 1984)
- Beaudoin G.-A. & E. Ratushny, The Canadian Charter of Rights and Freedoms 2nd ed. (Carswell, Toronto, 1989)
- Magnet, J. E., Constitutional Law 8th ed.(2001)
External links
- Canadian Charter of Rights and Freedoms - at Department of Justice Website
- Canadian Bill of Rights, 1960
- Constitutional Law of Canada by Professor Joseph E. Magnet, University of Ottawa
