Canadian Charter of Rights and Freedoms Is Enacted

Date April 17, 1982

By passing the Charter of Rights and Freedoms as part of its constitutional reform act, Canada for the first time specified a set of rights that applied at all levels of Canadian society.

Locale Ottawa, Ontario, Canada

Key Figures

• Pierre Trudeau (1919-2000), prime minister of Canada, 1968-1979 and 1980-1984
• René Lévesque (1922-1987), premier of the province of Quebec, 1976-1985, and leader of the Parti Québécois
• Joe Clark (b. 1939), leader of the Progressive Conservative Party and prime minister of Canada, 1979-1980

Summary of Event

Constitutions perform many different roles in a political system. The foremost of these is establishing the “rules of the game,” the types of political activity that are permissible and who the decision makers are. Rules are never neutral in their impact on the political system. They give power to some forces within society while denying it to others. The Canada Act of 1982, of which the Charter of Rights and Freedoms is a key part, was one of the most controversial political statutes in that country’s history precisely because it rewrote the rules of Canadian politics.

In order to understand the controversy surrounding the passage of the Charter of Rights and Freedom, it is necessary to examine the Canadian constitution as it existed at the time. Three features are of special importance: its federalist nature, the establishment of a parliamentary government, and the absence of an amending procedure.

With the British North America (BNA) Act of 1867, the United Kingdom established a federal system of government in Canada. Foremost among the powers granted to the federal government were responsibility for trade and commerce, defense, and foreign affairs. The provinces were given jurisdiction over education and welfare. Neither of these were important policy areas at the time the document was signed.

The BNA Act addressed the question of human rights within the very limited context of linguistic and religious rights. Section 93 limited the rights of provinces to encroach on the privileges of separate Roman Catholic and Protestant schools existing “by Law.” Section 133 established that both French and English were to be official languages in parliamentary debates and government record keeping. Finally, other sections of the BNA Act extended protection to English speakers within Quebec.

Beyond these restrictions, provincial governments were free to pass or not pass whatever laws they wished regarding matters of nondiscrimination. The rights of provinces to pass laws in the realm of political civil liberties such as freedom of association, freedom of speech, and freedom of the press fell into somewhat of a gray area. One body of thought held that the provinces lacked such powers because they fell under the federal government’s responsibility to make laws for peace, order, and good government. The other view held that provinces can pass laws in these areas because they fall within the provinces’ jurisdiction over property and civil rights.

The BNA Act created not only a federal system in Canada but also a parliamentary system. The BNA Act observed that Canada was to have a government “similar in principle to that of the United Kingdom.” This meant setting up a parliamentary system. Central to the operation of parliamentary systems is the principle of parliamentary supremacy. No act of parliament can be declared unconstitutional by the courts. Human rights and civil liberties are protected by respect for political traditions and principles along with the political sensitivity and common sense of those who serve in government. That is, in a parliamentary system, one’s right to free speech or a fair trial is guaranteed by the fact that everyone believes that it would be wrong to do away with these rights.

As the twentieth century progressed, many Canadians became concerned that unwarranted violations of human rights and civil liberties could take place. Examples of such violations could be found at all levels of government. The Quebec Padlock Law of 1937 supposedly banned the propagation of communist literature but also allowed the Quebec government to move arbitrarily against groups of individuals opposed to the government. In 1890, Manitoba passed a law establishing a completely nonsectarian school system that would have had the effect of abolishing or at least severely limiting French and Catholic educational rights. This meant that French Canadians in Manitoba could no longer expect to have their children taught in French-language schools, something that French Canadians saw as essential if they were to retain their traditional values and remain culturally distinct. In the 1950’s, the city of Quebec passed a law prohibiting the distribution of religious pamphlets on streets without a special permit, thus violating individual rights to free speech.

At the federal level, the most serious instance of the Canadian parliament’s passing legislation that infringed on human rights and civil liberties was the War Measures Act of 1914. This act allowed the federal government to rule by decree during such times that the prime minister and cabinet believe there to exist a situation of “war, invasion, or insurrection, real or apprehended.” No limit exists governing the length of time over which such a decree can remain in force. Canada was governed under terms of the War Measures Act between 1939 and 1945. In 1970, Prime Minister Pierre Trudeau invoked this act for two months in the federal government’s efforts to deal with terrorism in Quebec. A total of five hundredpolice raids were made during this time, and 465 people were arrested. According to the terms of Trudeau’s edict, it was a criminal act to be a member of the Front for the Liberation of Quebec, the group responsible for the terrorist acts that set off the political crisis.

The preferred solution of many Canadians to the problem of better protecting civil liberties was to add a charter or bill of rights to the Canadian constitution. This charter would put these rights largely beyond the effective reach of Parliament and would apply at both the federal and provincial levels. A prime factor in the thinking of proponents of a charter lay in the perceived inadequacies of the 1960 Canadian Bill of Rights. That piece of legislation began by enumerating the human rights and fundamental freedoms that exist in Canada. It then proceeded to place limits on them, the most significant of which were that these rights and freedoms applied only to federal legislation and that for all practical purposes the Bill of Rights became null and void when the War Measures Act was invoked.

The political problem facing those who wished to pursue a charter was the absence of an agreed-upon amending formula for the Canadian constitution. The BNA Act said nothing about the process by which the constitution could be amended. The starting presumption was that the British parliament would be the formal agent for amending the document. It was also assumed that the provinces would be active partners in the amendment process. In large measure, it was the absence of an amending formula and concerns for provincial opposition that led the government of Lester B. Pearson to limit the 1960 Bill of Rights to federal legislation.

In the 1970’s, a series of unsuccessful federal-provincial conferences was held to work out an agreement on an amending formula and to construct a Charter of Rights. After a decade of little progress, events began to move quickly in 1980. Interest in a charter was fueled by the growth of separatist sentiment in Quebec, led by Parti Québécois leader René Lévesque. Trudeau’s Liberal Party had been voted out of office briefly. It returned to power committed to the passage of an amending formula and a Charter of Rights. Faced with another federal-provincial impasse, Trudeau announced that the federal government would proceed unilaterally. This controversial decision, supported by the Canadian Supreme Court, produced a new series of intergovernmental meetings and intense debate within the House of Commons. Numerous changes were made in the government’s proposal. For example, at one point provincial forces succeeded in removing guarantees for women’s rights and aboriginal rights from the proposed charter. Later, under pressure from women’s rights organizations, the House of Commons moved to reaffirm provisions regarding sexual equality and aboriginal rights.

The final compromise emerged in November, 1981, and was agreed to by all parties except Quebec. The major compromise was the inclusion of a “notwithstanding clause,” which allowed provinces to override any specific clause of the charter for up to five years. The object of concern was not with basic democratic and fundamental rights but with such things as guarantees protecting mobility rights and legal equality rights which would conflict with provincial laws giving preference to local people. A second compromise involved delaying the effective date of many of the equality rights until three years after the charter took effect. This was done to allow provinces the time to change their laws to bring them into harmony with the new constitution.

The freedoms and rights guaranteed by the charter did not break any new ground. Passage of the charter extended these rights to all levels of political life in Canada and made it more difficult for Parliament to restrict them at some future time. Sections 2-5 protect basic civil and political liberties. Section 6 protects mobility rights. Sections 7-14 address the legal rights to be enjoyed by Canadians. Section 15 guarantees that every individual is equal under the law and has the right to equal protection without benefit of discrimination. Sections 16-22 provide protection for Canada’s two official languages. Section 23 extends this protection to the educational system. Section 24 provides for the judicial enforcement of the rights and freedoms contained in the charter. Finally, sections 25-31 contain a miscellaneous set of provisions. The British parliament finally considered the bill, known as the Canada Act, in mid-February, 1982. The patriation process was completed on April 17, 1982.

Significance

In its preamble, the Canadian Charter of Rights and Freedoms states that the rights and freedoms of Canadians are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” These rights and freedoms include the traditional rights to life, liberty, and security along with mobility rights and extended legal rights. Citizens are also guaranteed equality before the law regardless of race, sex, national or ethnic origin, and mental or physical disability. Affirmative action programs, however, are recognized as legitimate. Finally, in the area of linguistic rights, French and English are recognized as equal and official languages in Canada.

Evaluations have been mixed regarding the impact of the Charter of Rights and Freedoms on Canadian human rights. One school of thought holds that the impact has been minimal because most of the charter’s provisions have long been taken for granted by Canadians, thus the document merely formalized the status of human rights in Canada without creating new ones. The alternative position holds that the charter has had a modest impact in such areas as a heightened level of judicial activism, a reworking of the criminal law process in the direction of greater attention to due process issues, and increased use of the legal system by interest groups seeking to pursue policy objectives. Women’s groups, especially those on both sides of the abortion issue, have been particularly active in this regard.

One must note that section 33 of the charter allows the federal parliament to override these rights in keeping with the principle of parliamentary supremacy. As with a provincial exercise of the notwithstanding clause, this power is limited to five years in duration and must then be renewed. This means that it is legal for the Canadian parliament to vote out of existence any of the rights listed in the charter, for a period of five years. The Canadian Charter of Rights and Freedoms thus is not like the U.S. Bill of Rights, which is off-limits to congressional action and can be modified only through constitutional amendment. In the final analysis, protection of Canadian rights and freedoms depends on the belief that to tamper with them is inappropriate. As British practice in dealing with the Irish Republican Army illustrates, such beliefs can be overridden by other considerations, and the rule of law suffers in the process.

Bibliography

Doerr, Audrey, and Micheline Carrier, eds. Women and the Constitution in Canada. Ottawa, Ont.: Canadian Advisory Council on the Status of Women, 1981. Collection of papers presented at a conference. Topics addressed are the debate over the Charter of Rights and Freedoms, family law reform, overlapping legal jurisdictions within Canada, and social and economic problems facing women. The articles on overlapping jurisdictions and the constitution are particularly good.

Dyck, Rand. Canadian Politics: Critical Approaches. 4th ed. Scarborough, Ont.: Thomas Nelson, 2003. A popular textbook in Canadian universities.

Elkins, David. “Facing Our Destiny: Rights and Canadian Distinctiveness.” Canadian Journal of Political Science 22 (December, 1989): 699-716. Asserts that the Canadian constitution now contains several distinctive rights not found in the U.S. Constitution. The most significant of these are collective and community-based rights. He also states that the constitution contains negative rights which are also uniquely Canadian.

Hogg, Peter W. Constitutional Law of Canada. Toronto: Carswell, 1977. An in-depth treatment of constitutional law in Canada written prior to the Charter of Rights and Freedoms. Examines the basic concepts of Canadian constitutional law and has a section on civil liberties.

Jackson, Robert, Doreen Jackson, and Nicolas Baxter-Moore. Politics in Canada: Culture, Institutions, Behaviour, and Public Policy. Scarborough, Ont.: Prentice Hall Canada, 1986. This textbook on Canadian politics takes the view that the charter’s impact will be minimal because the rights it seeks to protect are already valued by Canadians.

Landes, Ronald. The Canadian Polity: A Comparative Introduction. 4th ed. Scarborough, Ont.: Prentice Hall Canada, 1995. This work is especially valuable for its final chapter, which uses the politics of the amendment process and the charter-writing effort as a case study in how the Canadian political process works.

McWhinney, Edward. Quebec and the Constitution, 1960-1978. Toronto: University of Toronto Press, 1979. Examines two decades of constitutional debate, politics, and development. Emphasis is on Quebec’s demands for social, economic, linguistic, and political self-determination. This work is particularly valuable for the insight it gives into Quebec’s obstructionist role in the charter debate.

Morton, F. L. “The Political Impact of the Canadian Charter of Rights and Freedoms.” Canadian Journal of Political Science 20 (March, 1987): 31-55. Written four years after the changes in the charter took effect, this article judges its impact in the areas of criminal law, interest group activity, and the role of the judiciary in the political process.

Simeon, Richard. “Constitutional Development and Reform.” In Canadian Politics in the 1980’s, edited by Michael S. Whittington and G. Williams. Toronto: Methuen, 1981. Frequently cited chapter on the debate over how to go about changing the Canadian constitution. The work is very readable and is part of a collection that was designed to be used as a textbook.

Smiley, Donald. Canada in Question: Federalism in the Seventies. Toronto: McGraw-Hill Ryerson, 1976. Written by one of the leading authorities on Canadian politics. This work is valuable because its first chapter contains a discussion of human rights and Canadian federalism. It also has an excellent treatment of Canada’s “other constitution,” the War Measures Act.

Sniderman, Paul, et al. “Political Culture and the Problem of Double Standards: Mass and Elite Attitudes Toward Language Rights in the Canadian Charter of Rights and Freedoms.” Canadian Journal of Political Science 22 (June, 1989): 259-283. This is the first report of the Charter Project, a study of mass and elite attitudes toward language rights in Canada. It finds that attitudes are shaped by core values and a concern for group status.