Canadian Charter of Rights and Freedoms

Background

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.

A Difficult Beginning

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. (See also Distribution of Powers.)

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. (See Patriation of the Constitution.)

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.

Notwithstanding Clause

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.)

The Charter’s Section 15 anti-discrimination clause led to a series of rulings that changed the legal landscape for gays and lesbians. For example, the Supreme Court’s 1998 Vriend decision banned discrimination on the basis of sexual orientation. (See also LGBTQ2S Rights in Canada.) That paved the way for the 2005 legalization of same-sex marriage.

Section 23 on minority language education rights transformed schooling for francophones outside Quebec. This gave rise to a generation of children, called “Section 23 kids,” educated in French language schools where population numbers warrant it. (See also: Language Policy; Canadian Parents for French.)

Section 25 says the Charter cannot be used to undermine Indigenous or treaty rights. Such rights don’t specifically fall under the Charter; they are covered by Section 35 of the Constitution Act, 1982. But their interpretation and expansion by the courts was profoundly influenced by the Charter. A prime example was the Supreme Court’s 1990 Sparrow decision. It strengthened Indigenous fishing and natural resource rights. Sparrow and similar case law made consultation of Indigenous communities a necessity when pursuing resource development almost anywhere in Canada. (See Resource Rights.)

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.

In 2012, on the 30th anniversary of the Charter, former Supreme Court of Canada Justice Frank Iacobucci responded to such criticism by telling CBC Television:

“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 Global Model?

The Charter is believed by some to be moving Canada constitutionally towards the example of the United States. However, the charter may in fact offer a distinctive alternative for other nations to emulate.

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.