History of the Charter The history of the Charter can be broken into four eras: 1. Prior to the Bill of Rights 2. The Bill of Rights 3. The road to the Charter 4. The Charter becomes law Prior to the Bill of Rights As a former colony of the British Empire, Canada inherited the principle of legislative supremacy from the United Kingdom. This is explicit in the British North America Act, which states that Canada would have a constitution similar in principle to that of the United Kingdom. The principle of legislative supremacy asserts that the legislative branch of government (i.e. the House of Commons and provincial legislatures) is the highest legal and political body of the land. There are no higher laws than those enacted by the legislature. Human and civil rights were the jurisdiction of the legislatures and the Canadian courts were reluctant to interfere. In addition, Canada s constitution was under the jurisdiction of the United Kingdom Parliament. Canada could not change its constitution at home, but had to apply to the U.K legislature for any amendments. The Bill of Rights In 1960, John Diefenbaker s government passed the Canadian Bill of Rights. The Bill of Rights was a small document (only one and a half pages) that guaranteed several fundamental freedoms, legal rights, and equality rights. The Bill of Rights also provided a notwithstanding clause that allowed governments to enact legislation beyond its review. Unlike the current Charter, the Bill of Rights was not entrenched in the Canadian constitution, but was simply an enactment of Parliament. As an ordinary statute, it was uncertain how it would take precedence over legislative supremacy. The Canadian courts failed to give the Bill of Rights a broad and liberal interpretation, preferring instead to construe it narrowly to avoid the appearance of interfering with the legislature s supremacy. Towards the Charter In 1971, under Prime Minister Pierre Trudeau, the federal and provincial governments reached an agreement called the Victoria Charter. This agreement called for a constitutional charter of rights and the patriation of the Canadian constitution from the United Kingdom. The agreement eventually failed due to objections by the provinces of Quebec and Alberta. In 1980, Trudeau announced that the federal government would proceed unilaterally (without the consent of the provinces) to patriate the constitution and entrench a charter of rights. However, after several inconclusive court decisions on whether the federal government could legally proceed in such a manner, the federal government and the provinces resumed negotiations. On November 4, 1981, the federal government and the provinces struck a compromise on patriation of the constitution (known as the Vancouver Consensus formula) and the entrenchment of a charter of rights. All provincial premiers agreed to the compromise except for Quebec Premier Rene Levesque, who advocated stronger French language rights in the Charter.
The Charter Becomes Law With the provinces consent (minus Quebec), the federal Parliament requested the United Kingdom Parliament to patriate the Canadian constitution. On April 17, 1982, the Queen signed the Canada Act, 1982. The legislation added the Constitution Act, 1982 to Canada s constitution and changed the name of the British North American Act to the Constitution Act, 1867. The Constitution Act, 1982 contained the Canadian Charter of Rights and Freedoms and Vancouver Consensus formula for future constitutional amendments. Quebec never officially consented to the new Canadian constitution and the Charter. However, both the Supreme Court of Canada and Quebec Court of Appeal ruled that Quebec s consent was not mandatory and that the new Charter and its amending formula applied in law to that province. Rights and Freedoms under the Charter The rights and freedoms under the Charter can be divided into six parts: 1. Fundamental Freedoms (Section 2) 2. Democratic Rights (Sections 3-5) 3. Mobility Rights (Section 6) 4. Legal Rights (Sections 7-14) 5. Equality Rights (Section 15) 6. Language Rights (Sections 16-23) An Introduction The following section will provide an introduction to these various rights and freedoms. It must be noted, however, that the following is a general and abstract summary. For an in-depth understanding of the particulars of each right and freedom (how they work in real life situations), one must examine their interpretation and application by the Canadian courts over the last twenty years. Fundamental Freedoms (Section 2) Fundamental freedoms are civil liberties that are important to the proper operation of a liberal democracy (which is the type of government we have in Canada). Section 2 of the Charter protects the following fundamental freedoms: 1. Conscience and religion 2. Thought, belief, opinion, and expression (including freedom of the press and other media of communication) 3. Peaceful assembly 4. Freedom of association Democratic Rights (Sections 3-5) Democratic rights regulate the functioning of the Canadian democratic system. Sections 3 to 5 of the Charter guarantee the following: 1. The right of every citizen to vote in federal and provincial elections 2. The right of every citizen to qualify for membership in the House of Commons and provincial legislatures (in other words, the right to run for public office) 3. No more than five years may elapse between general elections for the House of Commons or provincial legislatures 4. In time of real or apprehended war, invasion, or insurrection, a two-thirds vote can continue the life of the House of Commons beyond five years 2
5. Both Parliament and provincial legislatures must have a sitting at least once every twelve-month period Mobility Rights (Section 6) Mobility rights are aimed at making it easier for Canadians to move from one province to another to find work. These rights are important considering the number of restrictions provincial governments have placed in inter-provincial mobility (i.e. residency requirements for provincial benefits and hiring practices favouring current residents). Section 6 of the Charter provides for the following: 1. Every citizen has the right to enter, remain in, and leave Canada 2. Every citizen (who has permanent residence) has the right to move to and pursue a livelihood in any province Legal Rights (Sections 7-14) Legal rights refer to procedural safeguards designed to protect people from governmental abuse under the law. Legal rights are provided to any person or entity affected by provincial or federal authorities. Legal rights are thus provided to permanent citizens, temporary citizens, refugees, tourists, and even corporations. Sections 7 to 14 of the Charter guarantee the following: 1. The right to life, liberty, and security of person (except when the deprivation of these rights is done in accordance with the principles of fundamental justice) 2. Security against unreasonable search and seizure 3. No arbitrary detention or imprisonment 4. To be informed promptly for the reasons for any arrest or detention 5. Retain and instruct counsel on arrest 6. Trial within a reasonable time by an impartial tribunal 7. The presumption of innocence 8. No self-incrimination 9. No cruel and unusual punishment 10. The right to a court-appointed interpreter Equality Rights (Section 15) Equality rights involve the right to equality, free from discrimination. Section 15 of the Charter provides for the following: 1. Equal treatment before and under the law 2. Equal benefit and protection of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (or on any grounds that is analogous) 3. Subsection (2) explicitly states that section 15 does not preclude affirmative action programs that has as their object the amelioration of conditions of disadvantaged individuals or groups As almost every law discriminates amongst individuals or groups in one way or another, section 15 has had a large impact on federal and provincial legislation and procedures. This potential was recognized from the outset, as section 15 did not come into force until 1985 (three years after the rest of the Charter). 3
Language Rights (Sections 16-23) Official language rights involve the status and use of English and French in Canada. Sections 16 to 23 of the Charter provide for the following: 1. English and French are the official languages of the federal government of Canada. Both languages have equal status and equal rights and privileges as to their use. 2. English and French are also the official languages of the provincial government of New Brunswick (which is the only bi-lingual province in Canada). Under the Charter, both languages have equal status and equal rights and privileges as to their use. 3. The right of the public to communicate with and receive services from the federal government in French or English if certain conditions are met. 4. The rights of Canadian citizens to have their children receive primary and secondary instruction in either English or French if certain conditions are met. Application of the Charter The Charter contains three clauses that define its application: 1. Section 32 defines the scope of the Charter 2. Section 1 allows for violation of the Charter s rights and freedoms in certain circumstances 3. Section 33 provides for legislative override of the Charter The following is an introduction to each of these application clauses. Section 32 Section 32 states that the Charter only applies to Parliament, provincial legislatures, and federal and provincial governments. In other words, the Charter only applies to the relations between government and persons. This includes relations between persons and the legislative and executive branches of government, the public service (bureaucracy, police, etc), or agencies that exercise power on behalf of the government (hospitals, universities, law societies). This does not, however, include the courts. The Charter also does not apply to relations between private individuals, such as relations between employee and employer or husband and wife. Instead, human rights codes and the common law regulate these relationships. However, human rights codes and other legislation must conform to the Charter. Furthermore, in a recent decision, the Supreme Court of Canada found that in certain private contexts (such as labour relations) the Charter does impose an obligation on the state to extend protective legislation to unprotected groups. Section 1 Section 1 states that the rights and freedoms guaranteed by the Charter may be subject to reasonable limits that can be demonstrably justified in a free and democratic society. In other words, the rights and freedoms under the Charter can be violated if the violation is reasonable and justifiable. The Supreme Court of Canada has defined a test for determining whether a violation is reasonable and justifiable. This test is referred to as the Oakes test and was developed in the case of The Queen v. Oakes. The Oakes test has two key components: 4
1. Sufficient Importance The government must show that its objective is sufficiently important to warrant a violation of a right or freedom 2. Proportionality The government must prove that the violation of the right or freedom is proportionate to its objective. In showing proportionality, the government must prove the following: a. Rational Connection The violation must be rationally connected to the objective (it must be necessary to achieve the government s objective) b. Minimal Impairment The violation must minimally impair the right or freedom (the government did not go overboard in achieving its objective) c. Detriments versus Benefits The detriments of the violation must not outweigh its benefits (the solution must not be worse than the problem) Section 33 Section 33 is the famous notwithstanding clause of the Charter. Under section 33, the federal Parliament and provincial legislatures have the ability to declare that a particular piece of legislation is notwithstanding or beyond Charter review. This ability only applies to the Charter s fundamental freedoms (section 2), legal rights (sections 7 to 14) and equality rights (section 15). Furthermore, any application of section 33 is only good for five years. After that time, the piece of legislation becomes open to Charter review by the courts. The Court System and the Charter The Charter is a small pamphlet, only seven pages long. There is no way such a short document can fully express the nature and scope of each right and freedom contain within it. The job of putting the flesh on the skeleton is left to the Canadian court system and, in particular, the Supreme Court of Canada. The following is an introduction to the Canadian court system and its relationship with the Charter. Structure of the Court System Canadian courts are organized in a three-tiered structure: 1. Purely federal courts 2. Provincial superior courts 3. Purely provincial courts At the bottom of this structure are the purely provincial courts. This level includes the lower provincial and municipal courts of each province. These courts are generally divided into various divisions defined by subject (i.e. Traffic Division, a Small Claims Division, a Family Division, a Criminal Division). Provincial governments have jurisdiction over the constitution, organization and maintenance of these courts, as well as appoint the judges. Appeals from the purely provincial courts flow upward to the provincial superior courts. This level includes provincial Courts of Appeal and provincial superior trial courts. Authority over the 5
superior courts in each province is shared between the provincial and federal governments. The provinces have jurisdiction over the constitution, organization, and maintenance of these courts, while the federal government appoints the judges. Appeals from the provincial superior courts flow upwards to the purely federal courts. This level includes the Supreme Court of Canada, the Federal Court of Appeal, and the Federal Court Trial Division. The federal government has authority over the constitution, organization and maintenance of the purely federal courts. The federal government also appoints the judges to these courts. Diagram of the Structure of the Canadian Court System 6 (Note: Arrows indicate the flow of appeals) (Diagram Source: McCormick. P, Canada s Courts, p. 24) The Judiciary Today, all members of the Canadian judiciary are drawn from the legal profession. Federally appointed judges are required by federal statute to have been a member of a provincial or territorial bar for a minimal period of time. Lawyers wishing to become judges must undergo an application process and review by a special committee, with the appointment done by the federal cabinet. Similar systems operate within the various provinces for appointments to the provincial courts. All judges in Canada are subject to mandatory retirement. For some judges the mandatory retirement age is fixed by the Constitutional Act, 1867, while for others it is fixed by statute. The retirement age is either 70 or 75, depending on the court.
The judiciary has independence and is protected from government interference. This independence is guaranteed by different parts of the Constitution of Canada (including the Canadian Charter of Rights and Freedoms). Under the Constitution, judges are guaranteed security of tenure, financial security, and institutional administrative independence. The Supreme Court of Canada The Supreme Court of Canada is Canada's highest court. It has jurisdiction over both the civil law of the province of Quebec and the common law of the other provinces and territories. It is the final general court of appeal and the last judicial resort for all litigants. Most of the cases in the Supreme Court come to it on appeal from lower courts, usually the provincial or territorial courts of appeal, and the Federal Court of Appeal. The Court hears three types of appeals: 1. Leave to Appeal The Supreme Court grants leave to appeal based on the public importance of the legal issues raised in a given case. With the power to grant or refuse leave to appeal, the Supreme Court has control over what cases it hears and is able to supervise the development of Canadian jurisprudence. (What is jurisprudence?) 2. Appeals as of Right There are instances where an appeal to the Supreme Court is a right and leave is not required. This is often the situation in criminal cases. 3. References The Supreme Court may also consider important legal questions referred to it by the federal or provincial governments. These questions may include the constitutionality or interpretation of legislation, or the division of powers between the federal and provincial levels of government. Justices of the Supreme Court of Canada The Supreme Court consists of the Chief Justice of Canada and eight other Justices. They are appointed by the Governor in Council from among superior court judges or from among barristers of at least ten years' standing at the Bar of a province or territory. Each Justice, while on the Supreme Court of Canada, is bound by the following rules: They may not hold any other remunerative office under the federal or provincial government, nor engage in any business enterprise. They must reside in the National Capital Region or within 40 kilometers thereof. A Justice holds office during good behaviour, until he or she retires or attains the age of 75 years. The Governor General on address of the Senate and House of Commons may remove a Justice for incapacity or misconduct in office. The Supreme Court of Canada and the Charter The Charter itself does not set out the precise nature and scope of the rights and freedoms contained within. For example, the Charter states that every citizen has the freedom of thought, belief, opinion, and expression. However, it does not state what these freedoms mean and how they work in real life situations. Does freedom of expression mean neo-nazis are free to spread hate literature? Questions like this are answered by the Canadian courts and, in particular, the Supreme Court of Canada. As the highest court in Canada, the Supreme Court has the final say in how the rights and freedoms in the Charter are interpreted and applied in real life. Whatever 7
the Supreme Court decides, the lower courts (i.e. trial, superior and courts of appeal) must adhere to its decision. The government must also follow the Court s ruling (unless it decides to invoke the notwithstanding clause under s. 33 of the Charter). The Impact of the Charter Over the last twenty years, the Charter has had a large impact on government and politics in Canada. The following examines some important impacts and issues of the Charter. Rights and Freedoms in Canada One of the primary impacts of the Charter is the entrenchment of rights and freedoms in Canada. This doesn t mean that rights and freedoms were not protected before the Charter. Indeed, several civil liberties were protected by convention and common law rules. However, the Charter has enabled the Supreme Court to interpret previous rights and freedoms more liberally than before. In addition, unlike the Canadian Bill of Rights, the Charter is entrenched in the constitution as the highest law in the land. This has enabled the Supreme Court of Canada to be more active in protecting rights and freedoms and infringing on legislative objectives in doing so. Finally, the Charter has created new rights that did not previously exist in convention or common law. For example, equality rights under section 15 and the minority language rights in sections 16 to 23. Judicial Activism As the Charter s interpreter, the Supreme Court has taken on a more active role in Canadian politics. No longer is the principle of legislative supremacy absolute. As former Chief Justice Lamer stated. Our decisions hit harder because they hit wider. It's not for me or any judge to decide which laws should be passed, but if legislatures choose not to legislate, where else can people go except the courts? For many, this judicial activism represents an attack on Canadian democracy and its replacement with judicial supremacy. Laws are no longer made just by elected, accountable and representative bodies (politicians and legislatures); instead, they are increasingly being made by non-elected and unaccountable lawyers and judges. However, this characterization is not completely true. The Charter has not resulted in judicial supremacy in Canada, but a dialogue between the courts and the legislature (Hogg, P & Bushell, A. The Charter Dialogue the Courts and the Legislatures). In this dialogue, the courts generally leave room for legislative responses to their decisions. If important enough, legislative objectives will be accomplished, although with court imposed safeguards to protect individual rights and liberties. According to Hogg and Bushell, this dialogue is facilitated by specific clauses in the Charter itself: Section 1 of the Charter When there is a Charter violation, the courts must examine whether the violation is justifiable as a reasonable limit under s. 1 of the Charter. In doing so, the court takes into account the government s legislative objectives and examines alternative means of accomplishing this 8
objective that would impair the right or freedom to a lesser degree. This provides the legislature with a framework for revising a law that has been struck down, and represents a dialogue between the courts and legislature. Section 33 of the Charter The legislative over-ride clause allows legislatures to enact legislation that is beyond the review of ss. 2 and 7 to 15 of the Charter. However, the over-riding clause is only good for five years, upon which time the legislation must be re-enacted (generally after a general election). This allows the legislature to revisit the issue and possible court interpretations, and represents a dialogue between the courts and legislature. Qualified Charter rights Through qualified Charter rights (such as sections 7 or 8 of the Charter), the courts have forced the state to change its relations with persons under the law. For example, through section 8 of the Charter, the courts have made it more difficult for the state to use electronic surveillance on persons. In doing so, the courts have not taken this power away from the state, but have simply made the government respect individual rights and liberties when they use it. This represents a dialogue between the courts and legislatures. Equality rights Under section 15 of the Charter, the courts may strike down discriminatory legislation. However, the legislature has several responses to such court action. It may revise the legislation or revoke it completely. This interaction represents dialogue between the courts and legislature. Accessibility In the Charter s early years, some critics argued that only the rich would be able to have access to the Charter. Only big corporations and wealthy private individuals would have the money to fund expensive Charter litigation all the way to the Supreme Court. However, statistics have shown that other groups have also seized opportunities to bring Charter litigation before the Supreme Court. These groups include charities, aboriginal groups, women s groups, and other non-profit organizations. This is generally due to the Court s willingness to allow these groups to be interveners in litigation. As interveners these groups may attach themselves to and offer arguments in litigation that began without them. Source: http://www.mapleleafweb.com/features/constitution/charter 9