Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms, commonly known as the Charter, is a bill of rights that is part of the Constitution of Canada. The Charter protects the various political rights of Canadian citizens and the civil rights of all people living in Canada from being infringed upon by Canada’s federal and provincial governments. First enacted with the adoption of the Constitution Act, 1982, the Charter essentially serves as a legal framework for the relationship that governments in Canada share with the people they govern. The Charter guarantees an array of rights and freedoms, including fundamental freedoms, democratic rights, mobility rights, legal rights, equality rights, official language rights, and minority language education rights. At the same time, the Charter also places certain limitations on these rights and freedoms, allowing governments to enact laws that technically violate the Charter when it is justifiably determined to be in the broader public interest to do so. Since its adoption, the Charter has dramatically transformed the relationship between Canadians and their governments.

Background

Prior to the Charter’s enactment, the rights and freedoms of Canadian citizens and others living in Canada were protected by various preexisting laws that were not part of the Constitution. Most notable among these was the 1960 Canadian Bill of Rights. Although it was designed to protect certain rights, the Canadian Bill of Rights was limited in scope and effectiveness because, as a federal statute, it did not directly apply to provincial laws and could be amended through the ordinary legislative process. As a result, Canada lacked a bill of rights that was adequately far-reaching and permanent.

The move toward a new bill of rights began in the early 1980s when Prime Minister Pierre Trudeau and his government started working to patriate the Canadian Constitution so that it was no longer under the authority of the British government. As part of his effort to establish a new Constitution, Trudeau also championed the idea of including a new Charter of Rights and Freedoms that would go further than the existing Canadian Bill of Rights. Although the Charter proposal enjoyed a good deal of support, there were also concerns about whether it would give the judiciary too much authority to interpret its meaning, how lawmakers would be able to amend it, and if it would restrict the legislative abilities of provincial governments.

Once the proposed Charter was developed, it had to win the approval of Canada’s provincial premiers. Spearheading this effort were Justice Minister Jean Chrétien and provincial attorneys-general Roy Romanow and Roy McMurtry. Among the provincial premiers, the strongest objections to the Charter came from Québec premier René Lévesque, who was initially opposed to any agreement that left out the traditional Québec constitutional veto. Although Lévesque later stepped back from his demand that the constitutional veto be included in exchange for other concessions, the other premiers came to believe that he and Québec would only continue to slow and eventually kill the process of getting the Charter and the rest of the new constitution approved. As a result, when Chrétien and Romanow put forth an agreeable new proposal, the other premiers signed on without first consulting with Lévesque. This hastily negotiated backroom deal that paved the way for the Charter and the Constitution Act, 1982 subsequently became known as the Kitchen Accord. As a result of these events, the Québec government refused to sign the Constitution Act, 1982 and never granted the Charter its formal endorsement. Nevertheless, the Constitution Act, 1982 and the Charter were approved. Both were ultimately signed into law in Ottawa by Queen Elizabeth II on April 17, 1982.

Overview

The Charter enumerates the fundamental rights and freedoms that Canadians deem important enough to be protected and guaranteed by law. Because it is part of Canada’s Constitution, all federal and provincial laws and government actions must be in compliance with the Charter. In addition, changes to the Charter can only be made through the Constitution’s amending formula. This means that it is very difficult to make changes to the Charter. As a result, the Charter has never been formally amended.

The Charter protects Canadians’ rights and freedoms from infringement on the part of governments within the nation. While some of these protected rights and freedoms apply to everyone who lives in Canada, some only apply to Canadian citizens. The Charter includes protections for both negative and positive rights. Negative rights are those that are violated when interfered with by government actions. These rights place restrictions on the government. Positive rights are those that are violated when the government fails to take the required actions. These rights give the government special responsibilities that must be fulfilled.

None of the rights and freedoms protected by the Charter are considered absolute, and all are limited in certain ways. Some limitations arise because Charter rights are not viewed as covering every possible contingency. This means that there are occasional circumstances when a given right may not apply equally to all people. Other limitations arise in situations in which the government is granted the right to violate a Charter right under certain conditions. In these cases, the Supreme Court of Canada-developed Oakes test, which takes its name from the 1986 case R v. Oakes, is used to determine whether the government is justified in violating a certain Charter right. Finally, Charter rights can also be limited when the government makes use of the notwithstanding clause found within the Charter itself. This clause, which has rarely been exercised, empowers the government to temporarily declare a law exempt from necessarily complying with particular Charter rights.

Section 1: Guarantee of Rights and Freedoms

The first section of the Charter essentially acts as an introduction to the Charter itself. It explains the purpose of the Charter and clarifies its limitations. Specifically, it establishes that the Charter serves to protect the basic rights and freedoms afforded to all Canadians. It also establishes that Charter rights are not absolute and can be limited when governments are able to provide adequate justification for violating them.

Section 2: Fundamental Freedoms

The second section of the Charter lays out the fundamental freedoms it protects for all Canadians. These include the freedom of conscience and religion; the freedom of thought, belief, opinion, and expression, including freedom of the press and other media; the freedom of peaceful assembly; and the freedom of association. These fundamental freedoms are included in the Charter to afford Canadians the ability to freely develop and express ideas, as well as to gather to discuss these ideas and communicate them to others.

Sections 3-5: Democratic Rights

The next three sections of the Charter establish Canadians’ rights regarding the political process and the exercise of democracy in Canada. The first of these is the right of every Canadian citizen to play an active role in federal, provincial, and territorial elections, as well as to run for elected office themselves if they so choose. The second democratic right included in the Charter establishes that a government is accountable to voters and must stand for reelection at regular intervals of no more than five years except under extraordinary circumstances such as war or some other national emergency. Finally, the third democratic right enshrined in the Charter establishes that Parliament and other legislatures must sit for a session at least once per year to give both elected members and the public an adequate opportunity to discuss government actions.

Section 6: Mobility Rights

Section six of the Charter establishes the right of Canadian citizens to pass freely in and out of Canada; to move to a different province or territory to live there; and to move to a different province or territory to work or start a business there. It also establishes that provinces and territories may choose to provide social benefits like welfare to people who have lived there for a certain amount of time or may enact laws requiring workers to meet certain qualifications to practice a particular trade or profession. The last portion of section six also affords provinces and territories with employment rates below the national average to enact programs designed to specifically aid their own residents.

Sections 7-14: Legal Rights

The next several sections of the Charter enumerate the rights designed to offer Canadians protection when they come into contact with the justice system. Such rights help to make sure that Canadians are treated fairly during legal proceedings, particularly if they have been charged with a crime. The first of these legal rights is the right to life, liberty, and personal security. This section of the Charter also requires governments to respect the basic principles of justice when they intrude on an individual’s basic legal rights. The second legal right enumerated in the Charter offers Canadians protection against unreasonable searches and seizures. Further legal rights included in the Charter include the right to not be taken into custody without just cause, the right to be properly informed of the reasons for an arrest, the right to confer with a lawyer upon being arrested, and the right of an individual to ask a judge whether they were lawfully detained. This portion of the Charter also establishes the rules that protect people charged with offenses, prohibit cruel and unusual punishment, protect witnesses from having their own testimony used against them in other proceedings, and require authorities to provide interpreters for accused persons or witnesses as necessary.

Section 15: Equality Rights

The fifteenth section of the Charter establishes that all Canadians are considered equal under the law regardless of factors like race, gender, religion, ethnicity, age, or disability. It also prohibits governments from enacting any laws or operating any programs that discriminate against people on these grounds. In addition, this section of the Charter allows governments to create laws or programs meant to help groups or individuals regarded as disadvantaged.

Sections 16-23: Official Languages of Canada and Minority Language Educational Rights

The next several sections of the Charter deal with the use of language in Canada. Section sixteen establishes English and French as the official languages of Canada and New Brunswick and states that both can be used equally in government. It also establishes that English- and French-speaking people in New Brunswick have equal rights that must be protected by the New Brunswick government. New Brunswick is the only officially bilingual province. Sections seventeen, eighteen, nineteen, and twenty all establish the equal use of English and French in Parliament, courts, and public communications issued by federal and New Brunswick institutions. Section twenty-one aims to protect existing language rights found in other portions of the Constitution. Section twenty-two establishes that Charter rights regarding the use of English and French are not meant to hamper rights involving the use other languages as established in other laws or customs. Section twenty-three charges provincial and territorial governments with offering Canadians education in the official language of their choice so long as there are enough children in the classroom who speak a minority language to justify education being provided in that language.

Sections 24-33: Enforcement, General, and Application of Charter

The final sections of the Charter cover a variety of issues tied to the enforcement and applications of the Charter itself, as well as general concerns including Aboriginal rights. Section twenty-four pertains to enforcement and establishes that individuals who feel their Charter rights have been violated can appeal to court for an appropriate resolution. Section twenty-five concerns Aboriginal rights and clarifies that the stated Charter rights are not meant to interfere with the rights of Aboriginal peoples as established in previous treaties and elsewhere. Section twenty-six states that the establishment of Charter rights is not meant to suggest that other rights no longer exist or that new rights cannot be instituted. Sections twenty-seven through twenty-nine explain the appropriate interpretation of Charter rights with regard to culture, gender, and religious schools. Section thirty clarifies that the Charter applies to territories just as it applies to the provinces. Section thirty-one states that the Charter has no impact on the balance of power between provinces, territories, and the federal government. The last two sections clarify that the Charter applies only to governments and explain what a government needs to do when it wants to pass a law that would limit Charter rights. The latter is also known as the notwithstanding clause.

Bibliography

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“What Is the Canadian Charter of Rights and Freedoms?” Centre for Constitutional Studies, www.constitutionalstudies.ca/the-constitution/charter. Accessed 11 Oct. 2023.