Power & Influence Summer 2017

Zero-to-Expert: The Canadian Charter of Rights and Freedoms

Everything you need to know about one of Canada's defining documents.

The Canadian Charter of Rights and Freedoms is one of Canada’s defining documents, and encapsulates Canadian values. Image courtesy of the Canadian Department of Justice

PUBLISHED :Wednesday, June 28, 2017 12:00 AM

The Canadian Charter of Rights and Freedoms is one of Canada’s defining documents, and encapsulates Canadian values. It sets us apart in the world in terms of having a progressive document that other countries have looked to when thinking about how to devise a system of rights and freedoms for their own constitutions. South Africa looked to Canada and the Charter when it was reforming its laws post-Apartheid, as did Jamaica in designing its own Charter.

What came before?

While various rights and freedoms came about gradually though the system of common law that our courts rely on—and the Civil Code in Quebec— a Canadian Bill of Rights was enacted by Parliament on August 10, 1960, under the government of John Diefenbaker. But, because the Bill of Rights was not a constitutional document, and merely a federal statute, there was little to protect it from judges and courts interpreting it in a way that would find exceptions to the rules, particularly if the sections of the Bill of Rights were in conflict with another federal law that had not been amended to meet the aims of the Bill of Rights.

Why is the Charter different?

Because the Charter is a constitutional document, it has much more weight when compared to other federal laws, and that in turn, makes it enforceable in the courts in a way the Bill of Rights never could have been.

“To me, as a minority, it’s where I feel protected,” says Senator Serge Joyal, who was part of the Charter drafting process from the beginning as an MP, under then-prime minister Pierre Elliott Trudeau, and had previously been a lawyer taking the government to court over the enforcement of the Official Languages Act. “I don’t feel protected by the politicians. I feel protected by the court because it’s outside of the political pressure. They have the independence and they have the autonomy of understanding the whole picture.”

  

Joyal tells P&I that when then-prime minister Trudeau asked him to co-chair the Joint Committee on the Constitution of Canada, with then-Senator Harry Hayes, he said it would be on one condition: that the Charter be enforceable in court.

Trudeau agreed to Joyal’s condition, and later on, in order to make that enforcement accessible to Canadians, they also set up a Court Challenges Program that would help fund minority groups when they needed to take their cases to the courts—an important consideration when those groups need to sue a government with essentially unlimited resources.

“You can have a right on paper and say go to court, but if you have to mortgage your house to go to court to sue the government or the minister of justice, then if rights are rights, you can’t condemn people to heroism,” says Joyal. “Democracy can’t operate like that. We can’t reserve rights only to those who have money.”

Because the Charter is constitutional, it also has the ability to push provincial governments, particularly in areas like linguistic rights—something the Bill of Rights was not able to. It also blunts the supremacy of Parliament to unilaterally make laws, which in turn weakens the tyranny of the majority when it comes to the right of minorities.

  

How did the Charter come about?

In October of 1980, then-prime minister Pierre Elliott Trudeau announced his plans to constitutionalize a bill of rights that would include fundamental freedoms, democratic guarantees, freedom of movement, legal rights, equality rights, and language rights.

Over the course of around 65 days of televised joint-committee hearings, hundreds of groups from across the country weighed in, whether it was women’s advocacy groups, disability groups, or aboriginal leaders, many of them concerned about the proposed language in the Charter. It was notoriously contentious process, and o en times throughout, dramatic.

“I thought of the Persons Case,” Joyal says of the 1929 Judicial Committee of the Privy Council decision that declared that women were deemed “persons” under the law, and thus eligible to sit in the Canadian Senate.

“When you write a constitutional document, you have to make sure that you have inbuilt some kind of flexibility of concept,” says Joyal. “This is the testimony of respect that I have for the Justices of the Privy Council who recognized that the Canadian constitutional document was not a frozen document, it was not the Bible. They recognized that as much as the structures were permanent—the concept of division of power, that we were living in a constitutional monarchy—the rest was for us to define, and the court was sensitive to that.”

  

What are the rights within the Charter?

The Charter is set up in several sections, each of which enumerates different kinds of rights, but right at the very top is a clause that says that every one of the limits contained in the document is subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

“Section one states that none of the rights in the Charter are absolute, but they’re subject to reasonable limits,” says Carissima Mathen, a constitutional law professor at the University of Ottawa.

“That’s been really important because it’s meant that the courts engage in much more explicit balancing of interests. Section one states that the limit has to be demonstrably justified, and that the government has to actually bear the burden of demonstrating that, and the courts are the ones who are going to be interpreting it.”

The next section lays out fundamental freedoms: conscience and religion, thought, belief, opinion and expression including a free press, peaceful assembly, and association.

From there, the Charter lists democratic rights, mobility rights, and then legal rights. Most people will only ever have to deal with legal rights if they are arrested or charged with a crime, but these rights include things like the right not to be subject to unreasonable search and seizure, be arrested or detained arbitrarily, have the right to call a lawyer, and have the right to a fair trial.

“In the event that you are charged with an offence, the Charter provides a number of protections that are really foundational,” says Mathen.

These legal rights extend not only to treatment at the time someone is arrested, but it also affects how those laws are drawn up.

“The Charter also means that there are certain ways that Parliament can criminalize certain social problems and certain ways that it can’t, and that has had a huge effect on our criminal law in general,” says Mathen.

The next section is on equality rights, which ensures protection and equality under the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Since then, more categories have been “read into” the Charter by the courts for things like sexual orientation or family status.

“One of the biggest implications of the Charter in terms of equality rights has been the adoption of this approach that we determine whether someone has suffered inequality by looking to the effects of the law and not just what it says on its face and what the government intended,” says Mathen. “We have this approach where we also look at the effects, and if the effects are to create or perpetuate discriminatory treatment, then that’s going to be considered a violation of your equality right, and the government will try to have to justify that.”

The Charter also has a section on official languages, and minority language educational rights.

What is the Notwithstanding Clause?

The infamous “notwithstanding clause” is one of the final sections in the Charter, and is known as a compromise with the provinces that allowed its adoption to be agreed to in the first place (except by Quebec).

“There is a legitimacy debate—there are people who disdain the fact that there is a notwithstanding clause,” says Emmett Macfarlane, a political science professor at the University of Waterloo who studies the Charter and the Supreme Court of Canada. “They like to frame it as governments overriding rights, and even that’s a bit of a problem. What the notwithstanding clause was intended to do and what it allows legislatures to do is to signal disagreement with how courts have interpreted the Charter.”

The notwithstanding clause acts like an escape valve for legislative interpretations of rights, used best when there are competing rights at play and a government doesn’t think the courts struck the right balance, says Macfarlane. “It’s a much more difficult case to employ the notwithstanding clause when you’re really talking about the state as the main antagonist against a specific right.”

Macfarlane says that what the clause recognizes is that sometimes there are competing rights, that there is no objectively correct interpretation of the Charter, and that the courts don’t always get it right.

Where might it go next?

Because of the way that courts are able to interpret the Charter, it remains possible for new rights and freedoms to be “read into” the Charter, in part because of the “living tree” doctrine that was first articulated in the Persons Case. But the living tree also has limits; that the Charter should grow within its natural limits, and not transform an elm into a willow tree, as it’s been said.

“The risk with the living tree metaphor is that you want to take an existing right, like section seven of the Charter, which is the right to life, liberty and security of the person, and is connected directly to the criminal justice process and the administration of justice,” says Macfarlane. “There are people who want to say that right to life means a right to housing, a right to food, a right to healthcare, and a right to basically economic provisions by the state, which was certainly not contemplated by the framers in 1982… These social and economic rights are something else, and the court has left the door open to this.”