Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms, the only Charter of Rights entrenched in the Canadian Constitution, came into force on 17 April 1982. According to section 52 of the CONSTITUTION ACT, 1982, every law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force and effect. The SUPREME COURT OF CANADA in the Skapinker case of May 1984 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." It also declared that "the Charter is designed and adopted to guide and serve the Canadian community for a long time With the Constitution Act, 1982, comes a new dimension, a new yardstick of reconciliation between the individual and the community and their respective rights, a dimension which like the balance of the Constitution remains to be interpreted and applied by the court."

The Canadian Charter of Rights and Freedoms was an important issue in the debate concerning the patriation of the Constitution (see CONSTITUTION, PATRIATION OF). The majority of the provinces, while not averse to a Charter of Rights, had other priorities, particularly the enlargement of some of their powers. In November 1981 Prime Minister P.E. TRUDEAU accepted the Alberta-Vancouver formula of amendment endorsed by 8 provinces, and the provinces accepted the Charter of Rights, but not without imposing the exercise at will of a derogatory clause ("notwithstanding" clause of s33) for certain sectors of the Charter: fundamental rights, legal rights and the equality rights. By invoking the derogatory clause, the provinces (and Parliament) can declare any law exempt from the provisions of sections 2 and 7 to 15 of the Canadian Charter. The compromise resulted in the Canada Act, 1982, and the Constitution Act, 1982 (see DISTRIBUTION OF POWERS; CONSTITUTIONAL LAW).

Within the Canadian Constitution, the Charter occupies a central place. The courts, which in the past ruled on the division of powers and declared ULTRA VIRES statutes that violated such division, now rule also on whether federal and provincial statutes are compatible with the Charter.

A constitutional Charter of Rights always gives rise to a profound debate between 2 philosophies at the time of its entrenchment in a constitution. The first favours entrenchment so as to ensure that the courts have the last word in the field of liberties; the second holds that Parliament and the legislatures should have the last word. The general tendency in the constitutions since WWII has been in favour of the entrenchment of rights.

The object of a Charter of Rights is to protect the citizen against the STATE, and to protect minorities against parliamentary majorities. The Canadian Charter is comprehensive and covers several fields: fundamental rights, democratic rights, mobility rights, legal rights, equality rights and linguistic rights. The equality between men and women is also expressly protected by a particular section of the Charter. Aboriginal rights and freedoms are not affected.

The Canadian Charter of Rights and Freedoms was not adopted by the House of Commons and the Senate in its original form. More than one amendment was brought to the October 1980 version. Several individuals and pressure groups appeared before the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada. The 1208 submissions and the hearing of 104 witnesses resulted in the April 1981 version, which in the form of a Resolution was passed by both Houses. The April version, after the decision of the Supreme Court on patriation in September 1981, was further amended as a result of the 5 November 1981 agreement between the federal authority and 9 provinces.

Québec has invoked the derogatory clause of s33 of the Charter in respect of all its previous laws dealing with matters related to sections 2 and 7 to 15 of the Canadian Charter; Québec has done the same since 17 April 1982 for its statutes concerning those matters. Québec challenged, without success, the whole process, arguing that it had a right of veto according to a convention of the Constitution. The Supreme Court declared that such a convention does not exist. However, the government of Robert BOURASSA elected on 2 December 1985 decided not to use the derogatory clause in a global way.

The Supreme Court of Canada rendered its first decision on the Charter in 1984, in the Skapinker case. Over a period of 15 years, the Supreme Court has rendered more than 360 rulings on the Charter. Former Chief Justice Brian DICKSON said that the advent of the Charter was the most important event since the adoption of federalism in 1867. The Supreme Court has been up to the task and its work has been well regarded. Many of the rulings have been landmark decisions, eg, Québec's BILL 101 CASE (French-language Charter); BARTLE (right to counsel); BC Motor Vehicle Act (procedure and substantive law); BIG M DRUG MART (the Lord's Day Act violates the freedom of religion); CASLAKE (search and seizure); COOK (application of the Charter); COOPER (court of competent jurisdiction); FINTA (war crimes); FORD (freedom of expression and Bill 101 in Québec); GÉNÉREUX (judicial independence); GODBOUT (right to privacy); Hebert (right to silence); HUNTER Southam (unreasonable search and seizure); KEEGSTRA (freedom of expression and hate literature); KINDLER (death penalty); MAHE (minority-language school rights); CRUISE MISSILE CASE (the Executive Branch of the State is bound by the Charter); NOVA SCOTIA PHARMACEUTICAL SOCIETY (theory of the imprecision); OAKES CASE (presumption of innocence, and limitation clause in s1 of the Charter); PEI Reference (judicial independence); RJR MACDONALD (criminal law and tobacco); RODRIGUEZ (assisted suicide); SCHREIBER (application of the Charter); SINGH (fundamental justice and the right of a refugee to be heard); STINCHCOMBE (disclosure of evidence); STILLMAN (administration of justice, exclusion of evidence and DNA tests); SWAIN (criminal law); TRAN (right to an interpreter); Valente (judicial independence); VRIEND (equal rights); and ZUNDEL (freedom of expression and hate propaganda). Article 35 (native rights) was amended, and article 28 (sexual equality), article 40 (compensation for education and culture) and article 59 (language rights in Québec) were added in November 1981, after the constitutional conference, before the Resolution was finally adopted by the federal Houses and sent to the UK as part of the patriation process.

Author GÉRALD-A. BEAUDOIN

Suggested Reading
The Hon. Robert J. Sharpe & Kent Roach, The Charter of Rights and Freedoms, 4th ed. (2009).

Links to Other Sites
Historica-Dominion Institute
The website for the Historica-Dominion Institute, parent organization of The Canadian Encyclopedia and the Encyclopedia of Music in Canada. Check out their extensive online feature about the War of 1812, the "Heritage Minutes" video collection, and many other interactive resources concerning Canadian history, culture, and heritage.

Centre for Constitutional Studies
The official site of the Centre for Constitutional Studies at the University of Alberta. The Centre was founded to encourage and facilitate the interdisciplinary study of constitutional matters both nationally and internationally.

ASIA/CANADA
This beautifully illustrated site explores the relationship between East and West from earliest times to the present with a focus on the very complex Asian experience in Canada. Search for specific topics and themes. From the Historica-Dominion Institute.

Canadian Charter of Rights and Freedoms
A detailed guide to Canada's Charter of Rights and Freedoms and related issues. From the Department of Canadian Heritage.

Supreme Court of Canada
The extensive website for the Supreme Court of Canada provides access to the Court's online library catalogue, biographies of Supreme Court Judges, an overview of Canada’s judicial system and related information.

History of the Vote in Canada
Discover the history of responsible government, voting, and political elections in Canada. This site also features background documents, an online game, and a timeline of major issues and events. From the Canadian Museum of Civilization.

Black History Canada
An extensive Internet portal featuring links to online resources about the history and culture of the Black community in Canada. Topics include enslavement, early Black settlements, human rights, immigration, and prominent personalities and community leaders in business, government, religion, sports, the military, and the arts. From the Historica-Dominion Institute.

Fundamental Freedoms: The Charter of Rights and Freedoms
A superb multimedia educational resource about Canada's Charter of Rights and Freedoms. Explore the interactive Virtual Charter section for an up-close view of each section of the Charter, the Canadian Constitution, and the British North America Act. Also features interviews with Canadians talking about the Charter, comprehensive teacher guides that focus on related historical and legal issues, information about the television documentary “Fundamental Freedoms,” and much more.

The 30 Articles of Human Rights
See a well-produced video that was entered in the United Nations contest on short films on Human Rights. Also featuring Coldplay's "Life in Technicolor". From YouTube.