Canada : Strong and Free
The Charter of Rights and Freedoms, or simply the Charter, is the most visible and recognized part of Canada’s Constitution. The Charter guarantees the rights of individuals by enshrining those rights, and certain limits on them, in the highest law of the land. Since its enactment in 1982, the Charter has created a social and legal revolution in Canada.
Before the Charter came into being, rights and freedoms were protected in Canada by a variety of laws. These included the 1960 Canadian Bill of Rights. Although important, none of these laws was part of the Constitution. They therefore lacked the supremacy and permanence of the Charter. The Bill of Rights also only applied to federal, rather than provincial laws.
In the early 1980s, the government of Pierre Elliott Trudeau began the process of patriating Canada’s Constitution — taking it out of the hands of the British Parliament. The Trudeau government also decided to include within the Constitution a new Charter of Rights and Freedoms. (See also Constitutional History.) Amid the wider constitutional debates of 1981 and 1982, there were concerns about whether the Charter would give courts and judges too much power to interpret its meaning. There were also questions as to how it would be amended once it was in place. Many provincial leaders feared that a Charter would restrict the right of provincial governments to make laws as they saw fit.
The hard work of negotiating and crafting the Charter fell to Trudeau’s justice minister, Jean Chrétien (later prime minister). Chrétien was helped by two provincial attorneys-general, Roy Romanow of Saskatchewan (later premier) and Roy McMurtry of Ontario. Ontario Premier Bill Davis was also instrumental in bringing the Charter to life.
Quebec Premier René Lévesque, however, was less concerned with the Charter. In 1975, Quebec had passed its own Charter of Human Rights and Freedoms. It took precedence over other laws in the province, but was not enshrined in the Canadian Constitution. Lévesque was initially a fierce opponent of any new constitutional arrangement, especially one that did not honour Quebec’s traditional constitutional veto. But he entered into an alliance with other provincial premiers. ( See Gang of Eight.) Lévesque agreed to surrender the veto in exchange for a constitutional agreement that prioritized provincial rights over what he called a “rigid, even in some ways authoritarian conception of federalism.”
The other premiers of the Gang of Eight agreed to the new proposal spearheaded by Chrétien and Romanow. (See Kitchen Accord.) However, they chose not to seek Lévesque’s approval because, as Romanow explained, “What the province of Quebec would have done is requested additional amendments or changes, in my judgment, that would have either obfuscated or delayed and thereby killed the process.”
Lévesque and his lieutenants vehemently objected to the way the constitutional deal was negotiated in his absence. This became known in Quebec as the “night of the long knives.” “What they did this morning is beyond description,” Lévesque said. “Maybe second thoughts and further events will make them understand that this could have incalculable consequences.” As a result, the Quebec government has never signed the Constitution Act, 1982 or formally endorsed the Charter. However, the Constitution was determined by the Supreme Court of Canada to be legally binding without any of the provinces’ approval. Therefore, all Quebec laws must respect the Canadian Charter, as well as the Quebec Charter, to be considered constitutional. (See also Constitution Reference.)
In the end, a majority of provinces agreed to support the Charter on one condition; that it contain a clause allowing Parliament or any provincial legislature to exempt laws from certain sections in the Charter (on fundamental rights, equality rights and legal rights), for a period of five years. At that point, they would be subject to renewal. This “notwithstanding clause,” as Section 33 of the Charter is known, has been used only a handful of times by various provinces to override Charter rights. The federal government has never invoked the clause. Although the clause is available to governments, its use is politically difficult and therefore rare.
The provinces and Ottawa also settled on an amending formula for the Charter. Any changes require the agreement of Parliament plus the legislatures of seven provinces representing at least 50 per cent of Canada’s population. The Charter has been amended twice since its enactment.
After many months of passionate public debate, the Charter took effect as part of the Constitution Act, 1982. Queen Elizabeth II signed the governing legislation, the Canada Act, 1982, into law on 17 April that year in Ottawa.
What the Charter Applies To
The Charter protects Canadians against the state. It also protects minorities against parliamentary majorities. It applies to anyone in Canada, citizen or newcomer. However, some of its rights apply only to citizens, including the right to vote and the right to enter and leave the country. Its language is more general than specific, which is one reason critics fear it gives too much interpretive power to judges.
The principal rights and freedoms covered by the Charter include: freedom of expression; the right to a democratic government; the right to live and seek work anywhere in Canada; the legal rights of people accused of crimes; the rights of Indigenous peoples; the right to equality including gender equality; the right to use Canada’s official languages; and the right of French or English minorities to an education in their language.
Section 1 of the Charter gives governments the power to limit rights and freedoms, as long as those limits can be “demonstrably justified in a free and democratic society.” There have been numerous cases of the courts upholding such limits. For example, in the 1992 Butler case, the Supreme Court of Canada said a law dealing with pornography was a reasonable restriction on the right of free expression, because it protected society from harm in other ways.
Section 33 of the Charter is known as the notwithstanding clause. It allows governments to exempt their laws from certain sections of the Charter, but not from democratic, mobility or language rights. The federal government has never invoked the clause. It has been used a handful of times by various provincial governments to override Charter rights.
Between 1982 and 1985, the Parti Québécois invoked the clause in every piece of legislation passed in the National Assembly. It also amended all past legislation to include Section 33 wording. This was done in protest of the Charter, not to override any rights. However, in 1988, the Quebec Liberal Party invoked the clause to pass Bill 178, a law limiting the use of English-language signage and advertising.
Beyond Quebec, the clause has been written into five government bills and passed into law three times. In 1982, Chris Pearson’s Progressive Conservative government in Yukon invoked the clause in a land-planning bill that did not pass into law. In 1986, Saskatchewan Premier Grant Devine’s Progressive Conservative government invoked the clause in back-to-work legislation that the Saskatchewan Court of Appeal had ruled violated Charter rights. (See also Court System of Canada.) Devine’s use of the clause later became unnecessary after the Supreme Court accepted his government’s appeal against the lower court’s ruling.
In Alberta, Ralph Klein’s Progressive Conservative government used the clause in 2000 to pass legislation against same-sex marriage. However, the Supreme Court ruled in 2004 that marriage legislation was the jurisdiction of the federal government; it made same-sex marriage legal across all provinces and territories in 2005.
In 2017, Brad Wall’s Saskatchewan Party invoked the clause to override a court ruling that would have removed provincial funding from non-Catholic students attending Catholic schools. (See also Separate School.)
The following year, Doug Ford’s Progressive Conservative government invoked the clause in Ontario. The Ford government had passed legislation to reduce the size of Toronto’s municipal council. The law was struck down by an Ontario Superior Court judge for violating Charter rights. The Ford government removed the notwithstanding clause from the legislation after the Ontario Court of Appeal granted a stay of the Superior Court’s decision.
In June 2019, Quebec’s CAQ government led by François Legault passed Bill 21, the so-called secularism bill, into law. The law bans all public service employees — teachers, police officers, judges, etc. — from wearing religious symbols while working. Legault’s government invoked the notwithstanding clause to block individuals or groups from challenging the law for violating Charter rights. The law sparked protests and debate and was criticized by many as a form of legalized discrimination.
A Legal and Social Revolution
The Skapinker case of May 1984 was the first Charter case to come before the Supreme Court. It dealt with mobility rights. In its ruling, the court declared unanimously that the Charter “is a part of the Constitution of a nation… part of the fabric of Canadian law… the supreme law of Canada.” Since that time, the Charter has been applied in thousands of court rulings across the country. Constitutional law scholar Peter Hogg has said that the Charter’s influence occurs not only through the courts, but also invisibly behind the scenes; it guides the work of government lawyers and officials in designing laws and policies that are Charter-compliant.
The Charter’s impact is broad. But in its first three decades (1982–2012), it revolutionized a number of aspects of Canadian life, including the work of police and prosecutors. The Charter significantly strengthened the rights of criminal defendants: it tightened the rules around telephone wiretaps; protected accused people from having to disprove presumptions of guilt (1986 Supreme Court Oakes case); and required full disclosure of relevant evidence between the Crown and defence (1991 Supreme Court Stinchcombe case). However, this in turn increased the costs and created huge delays in the criminal justice system.
The Charter’s Section 7 guarantee of personal liberty led the Supreme Court to strike down the Criminal Code provision against abortion in 1988. This transformed women’s reproductive rights. (See also Henry Morgentaler.)
Judicial Activism Debate
The Charter has elevated the role of the courts by allowing judges to make sweeping social and legal changes through their interpretation of the Charter’s meaning. Critics say this has reduced the authority of elected bodies such as Parliament and the legislatures, because it gives courts the power to dismiss their decisions. Others argue the Charter has initiated a “dialogue” between Parliament and the courts. Judges strike down laws where necessary, and Parliament and legislatures rewrite those laws to be compliant with the Charter.
Others have accused judges of being social activists by “reading in” rights and freedoms into the Charter that aren’t specified in the document. In his book Friends of the Court, political scientist Ian Brodie (a former chief of staff to Prime Minister Stephen Harper) argues the Charter has led “business groups, unions, native groups, language minorities, gay and lesbian groups and others” to import American-style public-interest litigation techniques into Canada. This allows them to pursue policy-making through the courts rather than through the political system.
“Judges are not Don Quixotes, sort of charging off and expanding the role of interpretation to nullify parliamentary legislation or provincial legislation,” he said. “Judges take that job very, very seriously. But the Charter is written in very general language, which some people will criticize because it gives too much leeway to the interpretive function of the courts. But I believe it’s necessary. I don’t know of any constitution… which doesn’t have this general language. So the judges have to, and the lawyers have to, and the governments have to interpret that legislation… I don’t regret what my colleagues and I have done as judges.”
A June 2012 study published in the New York University Law Review said the Charter offers a model of how to balance competing legal interests in a modern, multicultural society. It also noted that the Charter is widely admired in the English-speaking Commonwealth. The study said the tools for establishing such a balance are found in three important sections. Section 1 says that rights are not absolute and can be limited by government as long as there is compelling evidence for doing so. Section 15 leaves equality rights open-ended to allow new groups (such as LGBTQ2S+ people) to be brought under its protection. Section 33 says governments can ignore judges’ decisions that strike down their laws, as long as they are willing to spend the political capital. These sections are key features of a constitution that encourages a dialogue between legislatures and the courts — a practice that is becoming the norm in many democracies. “Canada,” wrote US law professors David Law and Mila Versteeg in the 2012 study, “is a constitutional trend-setter among common-law countries.”
The Charter has proven over the years to be popular even in Quebec, despite its lack of official ratification by the Quebec government. A 2002 study by the Montreal-based Centre for Research and Information on Canada found that the Charter of Rights and Freedoms “is viewed favourably” in all regions of the country — with the highest rates of approval (91 per cent) in Quebec. In 2011, a survey of 1,000 Quebecers by the CROP polling organization found that 88 per cent of respondents supported the Charter.
CANADIAN CHARTER OF RIGHTS AND FREEDOMS
Guarantee of Rights and Freedoms
Rights and freedoms in Canada
1. 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.
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Democratic rights of citizens
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
Maximum duration of legislative bodies
4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members.(81)
Continuation in special circumstances
(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.(82)
Annual sitting in legislative bodies
5. There shall be a sitting of Parliament and of each legislature at least once every twelve months.(83)
Mobility of citizens
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
Rights to move and gain livelihood
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province other than those thatdiscriminate among persons primarily on the basis of province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
Affirmative action programs
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Search or seizure
8. Everyone has the right to be secure against unreasonable search or seizure.
Detention or imprisonment
9. Everyone has the right not to be arbitrarily detained or imprisoned.
Arrest or detention
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Proceedings in criminal and penal matters
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
Treatment or punishment
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
Equality before and under law and equal protection and benefit of the law
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Affirmative action programs
(2) Subsection (1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or
Official Languages of Canada
Official languages of Canada
16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
Official languages of New Brunswick
(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.
Advancement of status and use
(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.
English and French linguistic communities in New Brunswick
16.1 (1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.
Role of the legislature and government of New Brunswick
(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.(85)
Proceedings of Parliament
17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.(86)
Proceedings of New Brunswick legislature
(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.(87)
Parliamentary statutes and records
18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.(88)
New Brunswick statutes and records
(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.(89)
Proceedings in courts established by Parliament
19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament(90)
Proceedings in New Brunswick court
(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.(91)
Communications by public with federal institutions
20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where
(a) there is a significant demand for communications with and services from that office in such language; or
(b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.
Communications by public with New Brunswick institutions
(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.
Continuation of existing constitutional provisions
21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.(92)
Rights and privileges preserved
22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.
Minority Language Educational Rights
Language of instruction
23. (1) Citizens of Canada
(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province.(93)
Continuity of language instruction
(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.
Application where numbers warrant
(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province
(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and
(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.
Enforcement of guaranteed rights and freedoms
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Exclusion of evidence bringing administration of justice into disrepute
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Aboriginal rights and freedoms not affected by Charter
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.(94)
Other rights and freedoms not affected by Charter
26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
Rights guaranteed equally to both sexes
28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
Rights respecting certain schools preserved
29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or
under the Constitution of Canada in respect of denominational, separate or dissentient schools.(95)
Application to territories and territorial authorities
30. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.
Legislative powers not extended
31. Nothing in this Charter extends the legislative powers of any body or authority.
Application of Charter Application of Charter
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.
Exception where express declaration
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
Operation of exception
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration
Five year limitation
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection(1).
Five year limitation
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
34. This Part may be cited as the Canadian Charter of Rights and Freedoms.
Laurence BL Chief Editor