Canadian Charter of Rights and Freedoms

Section 1 of the Charter, known as the limitations clause, allows governments to justify certain infringements of Charter rights. If a court finds that a Charter right has been infringed, it conducts an analysis under section 1 by applying the Oakes test, a form of proportionality review. Infringements are upheld if the government's objective in infringing the right is "pressing and substantial" in a "free and democratic society", and if the infringement can be "demonstrably justified".[2] The Supreme Court of Canada has applied the Oakes test to uphold laws against hate speech (e.g., in R v Keegstra) and obscenity (e.g., in R v Butler). Section 1 also confirms that the rights listed in the Charter are guaranteed.

In addition, some Charter rights are subject to the notwithstanding clause (section 33). The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7 through 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.[3] In the past, the notwithstanding clause was invoked routinely by the province of Quebec (which did not support the enactment of the Charter but is subject to it nonetheless). The provinces of Saskatchewan and Alberta have also invoked the notwithstanding clause, to end a strike and to protect an exclusively heterosexual definition of marriage,[4][lower-alpha 2] respectively. In 2021, the government of Ontario under Premier Doug Ford invoked the notwithstanding clause in order to push through Bill 307, the Protecting Elections and Defending Democracy Act, doubling the amount of time election advertisements could run to 1 year from 6 months.[6][7] A Globe and Mail editorial claimed it was to silence critics of his government during the 12 months leading up to an election. "That means today [June 14, 2021], with just under a year to go before the next Ontario election, citizens are effectively barred from spending their own money to voice their opinion on any political issue."[8] Canadian author Margaret Atwood commented, "Here comes 1984. What kind of Stalinist autocracy does this bunch have in mind?"[9] In 2006, the territory of Yukon also passed legislation that invoked the notwithstanding clause, but the legislation was never proclaimed in force.[10]

The rights and freedoms enshrined in 34 sections of the Charter include:

Section 2

lists what the Charter calls "fundamental freedoms" namely freedom of conscience, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press and of other media of communication, freedom of peaceful assembly, and freedom of association. In case law, this clause is cited as the reason for the religious neutrality of the state.

Generally, the right to participate in political activities and the right to a democratic form of government are protected:

Section 3

the right to vote and to be eligible to serve as member of the House of Commons of Canada and provincial and territorial legislative assemblies.

Section 4

the maximum duration of the House of Commons and legislative assemblies is set at five years.

Section 5

an annual sitting of Parliament and legislatures is required.

Section 6

protects the mobility rights of Canadian citizens which include the right to enter, remain in, and leave Canada. Citizens and permanent residents have the ability to move to and take up residence in any province to pursue gaining livelihood.

Rights of people in dealing with the justice system and law enforcement are protected:

Section 7

right to life, liberty, and security of the person.

Section 8

freedom from unreasonable search and seizure.

Section 9

freedom from arbitrary detention or imprisonment.

Section 10

right to legal counsel and the guarantee of habeas corpus.

Section 11

rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.

Section 12

right not to be subject to cruel and unusual punishment.

Section 13

rights against self-incrimination.

Section 14

right to an interpreter in a court proceeding.

Section 15

equal treatment before and under the law, and equal protection and benefit of the law without discrimination.

Generally, people have the right to use either the English or French language in communications with Canada's federal government and certain provincial governments. Specifically, the language laws in the Charter include:

Section 16

English and French are the official languages of Canada and New Brunswick.

Section 16.1

the English and French-speaking communities of New Brunswick have equal rights to educational and cultural institutions.

Section 17

the right to use either official language in Parliament or the New Brunswick legislature.

Section 18

the statutes and proceedings of Parliament and the New Brunswick legislature are to be printed in both official languages.

Section 19

both official languages may be used in federal and New Brunswick courts.

Section 20

the right to communicate with and be served by the federal and New Brunswick governments in either official language.

Section 21

other constitutional language rights outside the Charter regarding English and French are sustained.

Section 22

existing rights to use languages besides English and French are not affected by the fact that only English and French have language rights in the Charter. (Hence, if there are any rights to use Aboriginal languages anywhere they would continue to exist, though they would have no direct protection under the Charter.)

Section 23

rights for certain citizens belonging to French and English speaking minority communities to have their children educated in their own language.

The remaining provisions help to clarify how the Charter works in practice.

Section 24

establishes how courts may enforce the Charter.

Section 25

states that the Charter does not derogate existing Aboriginal rights and freedoms. Aboriginal rights, including treaty rights, receive more direct constitutional protection under section 35 of the Constitution Act, 1982.

Section 26

clarifies that other rights and freedoms in Canada are not invalidated by the Charter.

Section 27

requires the Charter to be interpreted in a multicultural context.

Section 28

states all Charter rights are guaranteed equally to men and women.

Section 29

confirms the rights of separate schools are preserved.

Section 30

clarifies the applicability of the Charter in the territories.

Section 31

confirms that the Charter does not extend the powers of legislatures.

Section 34

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

Meanwhile, Trudeau, who had become Liberal leader and prime minister in 1968, still very much wanted a constitutional bill of rights. The federal and provincial governments discussed creating one during negotiations for patriation, resulting in the Victoria Charter in 1971, which was never implemented. Trudeau continued his efforts, however, promising constitutional change during the 1980 Quebec referendum. He succeeded in 1982 with the passage of the Canada Act 1982 in the British Parliament, which enacted the Constitution Act, 1982 as part of the Constitution of Canada.

Prime Minister Pierre Trudeau was a major advocate of the Charter.

The inclusion of a charter of rights in the patriation process was a much-debated issue. Trudeau spoke on television in October 1980,[16] where he announced his intention to constitutionalize a bill of rights that would include: fundamental freedoms, such as the freedom of movement, democratic guarantees, legal rights, language rights and equality rights.[17]^: 269 However, Trudeau did not want a notwithstanding clause. While his proposal gained popular support,[17]^: 270 provincial leaders opposed the potential limits on their powers. The federal Progressive Conservative opposition feared liberal bias among judges, should courts be called upon to enforce rights.[17]^: 271 Additionally, the British Parliament cited their right to uphold Canada's old form of government.[17]^: 272 At a suggestion of the Conservatives, Trudeau's government thus agreed to a committee of senators and members of Parliament (MPs) to further examine the bill 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 groups put forward their perceptions on the draft charter's flaws and omissions and how to remedy them.[17]^: 270 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 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 multiculturalism. The limitations clause was also reworded to focus less on the importance of parliamentary government and more on the justifiability of limits in free societies; the latter logic was more in line with rights developments around the world after World War II.[17]^: 271–2

In its decision in the Patriation Reference (1981), the Supreme Court ruled there was a constitutional convention 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 Chrétien, Ontario's justice minister Roy McMurtry, and Saskatchewan's justice minister Roy Romanow. Pressure from provincial governments (which in Canada have jurisdiction over property) and from the New Democratic Party, also prevented Trudeau from including any rights protecting private property.[18]

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 Québécois (PQ) leadership being allegedly uncooperative because it was more committed to gaining sovereignty for Quebec. This could have owed to the exclusion of Quebec leaders from the negotiation of the Kitchen Accord, which they saw as being too centralist. It could have also owed to objections by provincial leaders to the accord's provisions relating to the process of future constitutional amendment.[19] The PQ leaders also opposed the inclusion of mobility rights and minority language education rights.[20] The Charter is applicable in Quebec because all provinces are bound by the constitution. However, Quebec's opposition to the 1982 patriation package led to two failed attempts to amend the constitution (the Meech Lake Accord and Charlottetown Accord) 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 Charter has been amended since its enactment. Section 25 was amended in 1983 to explicitly recognize more rights regarding Aboriginal land claims, while section 16.1 was added in 1993. There have also been a number of unsuccessful attempts to amend the Charter, including the failed Charlottetown Accord of 1992. The Charlottetown Accord would have specifically required the Charter to be interpreted in a manner respectful of Quebec's distinct society, and would have added further statements to the Constitution Act, 1867 regarding racial and sexual equality and collective rights, and about minority language communities. Though the Accord was negotiated among many interest groups, the resulting provisions were so vague that Trudeau, then out of office, feared they would actually conflict with and undermine the 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.[21]

In general, courts have embraced a purposive interpretation of Charter rights. This means that since early cases, such as Hunter v Southam (1984) and R v Big M Drug Mart (1985), they have concentrated less on the traditional, limited understanding of what each right meant when the Charter was adopted in 1982. Rather, focus has been given towards changing the scope of rights as appropriate to fit their broader purpose.[1]^{: 722, 724–25} This is tied to the "generous interpretation" of rights, as the purpose of the Charter provisions is assumed to be to increase rights and freedoms of people in a variety of circumstances, at the expense of the government powers.

Constitutional scholar Peter Hogg (2003) 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.[1]^{: 722, 724–25} The approach has not been without its critics. Alberta politician Ted Morton and political scientist Rainer Knopff have been very critical of this phenomenon. Although they believe in the validity of the living tree doctrine, which is the basis for the approach (and the tradition term for generous interpretations of the Canadian Constitution), they argue Charter case law has been more radical. When the living tree doctrine is applied correctly, Morton and Knopff (2000) claim, "the elm remained an elm; it grew new branches but did not transform itself into an oak or a willow." The doctrine can be used, for example, so a right is upheld even when a government threatens to violate it with new technology, as long as the essential right remains the same, but the authors claim that the courts have used the doctrine to "create new rights". As an example, the authors note that the Charter right against self-incrimination has been extended to cover scenarios in the justice system that had previously been unregulated by self-incrimination rights in other Canadian laws.[23]^: 46–47

Another general approach to interpreting Charter rights is to consider international legal precedents with countries that have specific rights protections, such as the U.S. Bill of Rights (which had influenced aspects of the Charter) and the Constitution of South Africa. However, international precedent is only of guiding value and is not binding. For example, the Supreme Court has referred to the Charter and the U.S. Bill of Rights as being "born to different countries in different ages and in different circumstances".[lower-alpha 5][1]^: 232

Advocacy groups frequently intervene in cases to make arguments on how to interpret the Charter. Some examples are the British Columbia Civil Liberties Association, Canadian Civil Liberties Association, Canadian Mental Health Association, Canadian Labour Congress, the Women's Legal Education and Action Fund (LEAF), and REAL Women of Canada. 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 principle, which involves greater participation by elected governments. This approach involves governments drafting legislation in response to court rulings and courts acknowledging the effort if the new legislation is challenged.

The core distinction between the U.S. Bill of Rights and the 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.[1]^: 232–3 In contrast, rights under the U.S. Bill are absolute, thus 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.[1]^: 232–3 Canada's fundamental justice (section 7) is therefore interpreted to include more legal protections than due process, which is the U.S. equivalent.

Freedom of expression (section 2) also has a wider-ranging scope than the freedom of speech guaranteed under the U.S. First Amendment (1A).[1]^: 232–3 For instance, a form of picketing, though involving speech that might have otherwise been protected, was deemed as disruptive conduct and not protected by the U.S. 1A, but was considered by the Supreme Court in RWDSU v. Dolphin Delivery Ltd. (1986). The Supreme Court would rule the picketing, including the disruptive conduct, as fully protected under section 2 of the Charter, after which section 1 would be used to argue the injunction against the picketing as just.[26]

The limitations clause has also allowed governments to enact laws that would be considered unconstitutional in the U.S. For example, the Supreme Court has upheld some of Quebec's limits on the use of English on signs and has upheld publication bans that prohibit media from mentioning the names of juvenile criminals.

The un-ratified Equal Rights Amendment in the U.S., which garnered many critics when proposed, performs a similar function to that of the Charter section 28, which received no comparable opposition.[27] Still, Canadian feminists had to stage large protests to demonstrate support for the inclusion of section 28, which had not been part of the original draft of the Charter.[28][29]

The International Covenant on Civil and Political Rights has several parallels with the Canadian Charter, but in some cases the Covenant goes further with regard to rights in its text. For example, a right to legal aid has been read into section 10 of the Charter (right to counsel), but the Covenant explicitly guarantees the accused need not pay "if he does not have sufficient means".[1]^: 233–4

Canada's Charter has little to say, explicitly at least, about economic and social rights. On this point, it stands in marked contrast with the Quebec Charter of Human Rights and Freedoms and with the International Covenant on Economic, Social and Cultural Rights. There are some who feel economic rights ought to be read into the rights to security of the person (section 7) and equality rights (section 15) to make the Charter similar to the Covenant.[28] The rationale is that economic rights can relate to a decent standard of living and can help the civil rights flourish in a livable environment.[28] Canadian courts, however, have been hesitant in this area, stating that economic rights are political questions and adding that as positive rights, economic rights are of questionable legitimacy.[28]

The Charter itself influenced the Bill of Rights in the Constitution of South Africa.[28] The limitations clause under section 36 of the South African law has been compared to section 1 of the Charter.[25] Likewise, Jamaica's Charter of Fundamental Rights and Freedoms was also influenced, in part, by Canada's Charter.[30][31]