Legacy: the Charter
The Charter of Rights and Freedoms changes Canada
What does the Charter of Rights and Freedoms protect, how was it created, and what effect has it had on our country? And what about that “notwithstanding clause”?
When most Canadians think of the Constitution, they think of the Charter of Rights and Freedoms. Its birth was contentious, and its effects are wide-ranging. It’s a powerful legal tool that keeps governments from violating our rights and freedoms. But how many of us know exactly what it is and what is in it?
The Canadian Charter of Rights and Freedoms
What the Charter Protects
What the Charter Protects
The Canadian Charter of Rights and Freedoms became part of Canada’s Constitution on April 17, 1982. It is Part 1 of the Constitution Act 1982.
The Charter protects specific rights and freedoms of Canadians from violations by Parliament, the legislatures, and government actors such as the police. The protected rights and freedoms are described in sections 2 to 23. Section 1 is the clause that allows the government to justify violations of rights and freedoms if they are found by the courts to be reasonable. This is the section that allows balancing of individual protections with collective rights of society.
Rights of society
Section 1: Limitations Clause
Section 1 of the Charter acknowledges that the rights and freedoms protected in the Charter are not absolute. Sometimes they are superseded by the country’s social needs, public security, and so on. In essence, Section 1 allows the courts to balance the individual rights protected in the Charter against broader societal interests, by allowing governments the opportunity to justify their laws or actions. The courts decide whether the government’s reasons for a law or action are defensible or justifiable in light of the breach of right or freedom. For example, laws prohibiting hate speech are a clear violation of the freedom of expression guaranteed in the Charter. But courts have found that prohibiting hate speech is a reasonable and justifiable limit on that freedom in Canada.
Section 2-23: Fundamental Rights and Freedoms
• Section 2: Protects the fundamental freedoms of conscience, religion, thought, belief, opinion, and expression; the freedom of the press; and the rights to peaceful assembly and free association.
• Sections 3 to 5: Protect democratic rights to vote and run in regularly held elections. These rights only apply to Canadian citizens.
• Section 6: Protects mobility rights, which let all Canadian citizens live and work in any province.
• Sections 7 to 14: Protect legal rights, including the right to life, liberty, and the security of the person; protections against arbitrary detention, arrest, and search and seizure; rights to retain counsel when detained or arrested; guarantees against cruel and unusual punishment; right to a timely trial; the presumption of innocence until proven guilty; and protection from self-incrimination.
• Section 15: Protects equality rights, guaranteeing equality before and under the law, equal protection and equal benefit of the law for all, without discrimination on the basis of race, sex, national or ethnic origin, colour, religion, age, or mental or physical disability. Other grounds, called “analogous grounds” such as sexual orientation can also be recognized by the courts.
Sections 16 to 23: Protect language rights, recognizing the equal use of English and French in government institutions and services for the federal government, as well as New Brunswick. These sections also establish minority-language education rights across Canada, wherever numbers warrant.
The remaining sections (24 to 34) deal with how the Charter is to be enforced and interpreted — including section 33, the contentious “notwithstanding clause.” Also called the 'override clause', allows Parliament or provincial legislatures to override or ignore certain sections of the Charter of Rights and Freedoms when they are crafting legislation. It allows legislation to exist notwithstanding that it is in breach of the Charter of Rights and Freedoms. The Notwithstanding Clause can only be used in reference to section 2 (fundamental freedoms), sections 7 to 14 (legal rights) and section 15 (equality rights), and it can only be invoked for 5 years at a time.
Section 35 of the Constitution, which recognizes and affirms existing aboriginal Aboriginal is the collective term used in the Constitution to describe the original peoples of North America and their descendants and includes First Nations, Inuit, and Métis. See also: Indigenous. and treaty rights, is not part of the Charter of Rights and Freedoms The Charter sets out the rights and freedoms that are officially guaranteed by the Canadian Constitution, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It is Part 1, sections 1-34 of the Constitution Act, 1982. .
The "Fathers of Confederation", 1864
How The Charter Developed
How The Charter Developed
1867-1960: Toward A Bill of Rights
At Confederation, the only individual rights in the 1867 Constitution were the right to use both French and English in legislatures and courts in Québec and constitutional protection for religious schools: Roman Catholic separate schools in Ontario and Protestant separate schools in Québec. At that time, constitutions in the United States, Britain, and France included more comprehensive bills of rights.
Following World War II, there was a rise in international understanding of the devastating impacts of racism and the need to address discrimination and human rights. Individual Canadian provinces started to address these concepts, but there was no organized national effort. Nationally, and regionally, there was little acknowledgement of the racism that Indigenous Peoples faced.
In 1960, the Progressive Conservative The Progressive Conservative Party of Canada was the name of the main centre-right federal party between 1942 and 2003. It was formed from an alliance of the Conservative and Progressive Parties. It was succeeded by today’s Conservative Party of Canada. Many provincial parties retain the name Progressive Conservative. It was the Official Opposition party during most of the constitutional debates of the 1970s and early 1980s, but the governing party in a majority of the provinces. government, led by Prime Minister John Diefenbaker, passed the Canadian Bill of Rights, which included protection for equality rights, property rights, and legal rights in relation to federal legislation. However, it wasn’t effective as a legal tool to protect against discrimination or to preserve rights because it was cautiously interpreted by the courts. For example, Ms. Lavell, an Indigenous woman, lost her Indian Indian is a term historically used by governments to describe the original peoples of North America - Indigenous and Aboriginal - but it is not considered respectful or accurate. It remains in section 91(24) of the Constitution and the “Indian Act”. status when she married a non- Indian Indian is a term historically used by governments to describe the original peoples of North America - Indigenous and Aboriginal - but it is not considered respectful or accurate. It remains in section 91(24) of the Constitution and the “Indian Act”. man. She used the Bill of Rights to challenge section 12(1)(b) of the Indian Indian is a term historically used by governments to describe the original peoples of North America - Indigenous and Aboriginal - but it is not considered respectful or accurate. It remains in section 91(24) of the Constitution and the “Indian Act”. Act on the basis that it discriminated against women. But she lost her case at the Supreme Court of Canada. The Court found that there was no discrimination because the Indian Indian is a term historically used by governments to describe the original peoples of North America - Indigenous and Aboriginal - but it is not considered respectful or accurate. It remains in section 91(24) of the Constitution and the “Indian Act”. Act treated all Indian Indian is a term historically used by governments to describe the original peoples of North America - Indigenous and Aboriginal - but it is not considered respectful or accurate. It remains in section 91(24) of the Constitution and the “Indian Act”. women in the same way.
The Bill of Rights did not apply to provincial governments, and as ordinary legislation (not part of the Constitution), was easy to change or repeal. As time went on, the idea of a constitutionally entrenched bill of rights began to gain ground.
Trudeau and his Cabinet, 1967
1967-1980
First Drafts
1967-1980
First Drafts
Canada’s Centennial Year, 1967, precipitated a wave of national confidence. The time seemed right to update the Constitution. Prime Minister Trudeau brought a proposal for a Charter to a federal-provincial conference in 1969 where it was agreed that there should be a comprehensive review of the Constitution.
In June 1971, the first ministers The leaders of the ruling parties in the federal, provincial and territorial governments, including the Prime Minister and the premiers of each province and territory. Canada has fourteen first ministers. crafted the Victoria Charter This amending formula model was proposed as part of the failed Victoria Charter constitutional package in 1971, and remained part of negotiations for the following decade. It required that constitutional changes be approved by the federal government and a majority of the provinces, including at least two in Western Canada and two in Atlantic Canada. It also granted vetoes to the two largest provinces, Ontario and Québec. which contained a method for patriation The process of bringing the British North America Act, 1867 – the Constitution of Canada – under full domestic control, rather than having it remain as an act of the British Parliament. After decades of effort, patriation was completed with the 1982 passage of the Canada Act in Britain and the Constitution Act in Canada. It includes a means of amending the Constitution in Canada. The new Constitution was not endorsed by the government of Québec. , an amending formula The rules for changing the Constitution. Most parts of the Constitution require the agreement of the Senate and House of Commons, and at least two-thirds of the provinces representing 50% of the population for an amendment. giving a veto to Québec and Ontario, and a few basic fundamental rights in a charter of rights. No agreement resulted from this conference, and constitutional reform ground to a halt for the next seven years. A charter was re-proposed in 1976. Once again, the first ministers The leaders of the ruling parties in the federal, provincial and territorial governments, including the Prime Minister and the premiers of each province and territory. Canada has fourteen first ministers. could not reach an agreement.
After Trudeau’s re-election in 1980, more drafts of the Charter were presented and studied by the federal government, and a new version was finally tabled in Parliament in October 1980.
Trudeau's Vision
For Pierre Trudeau, a Charter of Rights and Freedoms The Charter sets out the rights and freedoms that are officially guaranteed by the Canadian Constitution, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It is Part 1, sections 1-34 of the Constitution Act, 1982. was a “magnificent obsession”. He had read the works of the Enlightenment and religious philosophy underpinning individual rights. Trudeau believed strongly that a Charter should recognize the individual as the most fundamental subject of law, and protect the individual’s basic rights against abuses by governments. Trudeau also saw a Charter as a tool of nation-building. He believed it would counteract Québec nationalism by expressing shared values that would apply to every Canadian, despite regional, religious, or linguistic divisions.
He believed it would counteract Québec nationalism by expressing shared values that would apply to every Canadian, despite regional, religious, or linguistic divisions.
Trudeau's Comeback Majority Win, 1980
1980-1981
The Final Battles
1980-1981
The Final Battles
The Pubic Weighs In
In 1980-81, a joint
House of Commons
The “lower” legislative assembly of Parliament (relative to the Senate’s “upper” house) in the Canadian Parliament. The House is composed of the popularly elected representatives of ridings (electoral districts) across Canada.
and
Senate
The “upper house” of the Canadian Parliament, which reviews and approves all federal legislation initiated in either House. (It does not usually initiate legislation, although it has that power.) The Senate is comprised of 105 senators, who are appointed until the age of 75 by the Governor General on the advice of the Prime Minister. Senate seats are proportioned by region, in an attempt to balance the population-based membership of the House of Commons and improve regional equality in government.
committee, the
Hays-Joyal Committee
The Special Joint Committee on the Constitution, chaired by Senator Harry Hays and MP Serge Joyal, in 1980 and 1981. It held three months of hearings (many televised) and took written submissions from more than 900 individuals and organizations on the federal government’s proposals for constitutional patriation.
heard from hundreds of concerned individuals and groups about their views on what should be in the proposed charter. Canadians became interested as a result of the committee’s televised hearings - it was a stellar example of citizen engagement with their Constitution!
The Hays-Joyal Committee The Special Joint Committee on the Constitution, chaired by Senator Harry Hays and MP Serge Joyal, in 1980 and 1981. It held three months of hearings (many televised) and took written submissions from more than 900 individuals and organizations on the federal government’s proposals for constitutional patriation. sat from November 1980 to February 1981. 914 individuals and 294 groups submitted briefs, and 104 individuals and groups presented orally. The committee heard from representatives of Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes. Peoples groups (the most numerous of any constituency that testified), women’s groups, civil liberties and human rights groups, multicultural and immigrant groups including the National Black Coalition of Canada and the National Association of Japanese Canadians, representatives of people with disabilities, the Canadian Association of Lesbians and Gay Men, churches, and experts on constitutional law. It was a democratic exercise in constitution making because ordinary Canadians became participants in constitutional change.
However, it should be recognized that those who presented to the Hays-Joyal Committee The Special Joint Committee on the Constitution, chaired by Senator Harry Hays and MP Serge Joyal, in 1980 and 1981. It held three months of hearings (many televised) and took written submissions from more than 900 individuals and organizations on the federal government’s proposals for constitutional patriation. did not represent all Canadians. Only those with the means could produce submissions or travel to Ottawa The capital city of Canada, where the federal Parliament buildings, the House of Commons and the Senate are located. For this reason, “Ottawa” is sometimes used as a synonym for the federal government, as in a phrase such as, “Ottawa refused any further negotiations.” to appear before the Committee. Those who did appear were selected by the Committee members behind closed doors – many more wanted to appear than were selected to do so. The people who were able and allowed to present did not represent the full diversity of Canadian society.
Still, because of the Hays-Joyal Committee The Special Joint Committee on the Constitution, chaired by Senator Harry Hays and MP Serge Joyal, in 1980 and 1981. It held three months of hearings (many televised) and took written submissions from more than 900 individuals and organizations on the federal government’s proposals for constitutional patriation. hearings, the Charter was significantly revised and strengthened.
For example, section 15, the equality rights section, attracted more submissions than any other section. The many groups and individuals who weighed in pressed for modifications to the wording of the equality clause, so that its protections against discrimination would allow equal protection and equal benefit of the law.
As a result of submissions made by many groups, the list of grounds in section 15 was expanded to include ‘age’ and ‘mental or physical disability’. The addition of the words ‘in particular’ to the listed grounds meant that the list could be open-ended. It left open the possibility that grounds not specifically listed such as ‘sexual orientation’, for example, could be recognized in the future.
Indigenous
Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes.
groups worried that the equality provisions in section 15 might undermine specific
Indigenous
Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes.
rights and land titles by limiting their self-governance. The federal government accepted the addition of what is now section 25, the provision that the Charter could not be used to interfere with (abrogate or derogate from) any
Aboriginal
Aboriginal is the collective term used in the Constitution to describe the original peoples of North America and their descendants and includes First Nations, Inuit, and Métis. See also: Indigenous.
, treaty, or other rights and freedoms that pertain to the
Aboriginal
Aboriginal is the collective term used in the Constitution to describe the original peoples of North America and their descendants and includes First Nations, Inuit, and Métis. See also: Indigenous.
Peoples of Canada.
Similarly, some immigrant and cultural groups feared that section 15 equality rights might deny them the right to practice their own traditions. So what is now section 27 was also added: the obligation to interpret the Charter “in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”
Multicultural heritage
RALLY IN MONTREAL, 1967
The Language Issue
The Language Issue
Language rights discussions for a charter were expected to be the culmination of debates about French and English that began at the time of Confederation. The status of Indigenous and other languages was never considered and many government policies sought to eradicate these languages all together. The long term effects of those policies was to significantly endanger Indigenous languages.
The language debates were contentious. They were informed in part by Québec Premier René Lévesque’s introduction of Bill 101, known as the French Language Charter in 1977. It made French the official language of Québec, of work and advertising, and of schooling for any children whose mother or father hadn’t received their primary education in English in Québec.
Many anglophones Someone who speaks English as their first or primary language; or, as an adjective, “English-speaking.” outside of Québec saw the entrenchment of official bilingualism Canada is officially bilingual, which means that “English and French have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada”. Official bilingualism began in Canada when Parliament passed the Official Languages Act in 1969. It is included in the Official Languages section of the Charter of Rights and Freedoms. in the Charter as an unwanted imposition. Trudeau answered that English Canada needed to accept the equality of French Canadians, or risk splitting up the country. He saw the Charter’s official-language and minority-language rights A general term for the rights guaranteed to (or demanded by) the speakers of the non-majority official language in any region of Canada, primarily francophones in English Canada or anglophones in Québec. Most often it refers to rights to access education and other government services in the official language of the minority. as the centerpiece of his promise to Québec after its first sovereignty referendum A popular vote (whether civic, provincial, or national) on a proposal or question. The patriation of the Constitution became a more urgent matter after the 1980 Québec referendum on sovereignty. Pierre Trudeau and others proposed several different possible national referenda to resolve constitutional issues. in 1980.
Trudeau maintained that language rights must be individual rights, not collective rights held by a particular people within Canada. He thought a “just society” required that French and English speakers be able to live, work, learn, and engage as citizens in their own language, no matter where in Canada they happened to live.
“Just society”
The Gang of Eight, 1981
Provinces In Opposition
Provinces In Opposition
The Charter was popular — polls showed that more than 80 per cent of the Canadian public supported it — but the premiers tended to see it as another federal encroachment on provincial autonomy.
They were interested primarily in re-negotiating the division of powers between the federal government and the provinces. And they were vehemently opposed to Trudeau`s proposal for patriating the Constitution unilaterally. All except Ontario and New Brunswick opposed Trudeau’s constitutional proposal in 1980-81.
Trudeau believed that a government should be accountable to the people. A constitutional Charter of Rights would prevent the government from violating Canadians` rights and freedoms without good reason. The courts would be called upon to decide whether government violations of rights could be justified. So including a Charter of Rights in the Constitution meant a much greater role for the courts. This prospect alarmed many observers, especially the provincial leaders.
Manitoba Premier Sterling Lyon and Saskatchewan Premier Allan Blakeney saw the Charter as taking power away from citizens by shifting it from democratically elected political representatives to unelected judges. Lyon, a Progressive Conservative The Progressive Conservative Party of Canada was the name of the main centre-right federal party between 1942 and 2003. It was formed from an alliance of the Conservative and Progressive Parties. It was succeeded by today’s Conservative Party of Canada. Many provincial parties retain the name Progressive Conservative. It was the Official Opposition party during most of the constitutional debates of the 1970s and early 1980s, but the governing party in a majority of the provinces. , feared that judges would be too liberal; Blakeney, from the NDP Formed to succeed the CCF in 1961, the New Democratic Party is the main left-wing, social-democratic federal and provincial party in Canada. It has never formed a federal government, but has won office many times at the provincial level, particularly in western Canada, but also in Ontario and Nova Scotia. , feared they would be too conservative.
Eventually, however, all of the provinces except Québec agreed to endorse the 1981 constitutional accord which included a Charter. Trudeau’s reluctant acceptance of a “notwithstanding clause” was the key.
Canadian Charter of Rights and Freedoms
The Notwithstanding Clause Controversies
The Notwithstanding Clause Controversies
Section 33 of the Charter of Rights and Freedoms, the notwithstanding or override clause, is a unique Canadian invention.
The clause allows the federal Parliament and/or a provincial legislature to create or maintain a law that violates certain rights and freedoms: the fundamental freedoms in section 2 such as freedom of religion, expression, association; legal rights in sections 7-14 such as the right to life, liberty, security of the person, the right to counsel, to be presumed innocent until proven guilty and to have a trial within a reasonable time; and equality rights.
The clause allows the federal Parliament and/or provincial legislatures to “override” a decision of the court, making a law unconstitutional because it violates a section of the Charter. However, there is a sunset clause: protection afforded by section 33 automatically expires after five years. A legislature or Parliament using the notwithstanding clause Also called the 'override clause', allows Parliament or provincial legislatures to override or ignore certain sections of the Charter of Rights and Freedoms when they are crafting legislation. It allows legislation to exist notwithstanding that it is in breach of the Charter of Rights and Freedoms. The Notwithstanding Clause can only be used in reference to section 2 (fundamental freedoms), sections 7 to 14 (legal rights) and section 15 (equality rights), and it can only be invoked for 5 years at a time. can then pass the law again, if it chooses to for another five-year period.
The notwithstanding clause Also called the 'override clause', allows Parliament or provincial legislatures to override or ignore certain sections of the Charter of Rights and Freedoms when they are crafting legislation. It allows legislation to exist notwithstanding that it is in breach of the Charter of Rights and Freedoms. The Notwithstanding Clause can only be used in reference to section 2 (fundamental freedoms), sections 7 to 14 (legal rights) and section 15 (equality rights), and it can only be invoked for 5 years at a time. was an essential addition to the Charter when it was being negotiated. It gave the premiers assurance that they could continue to exercise their law-making authority and autonomy without interference by the courts. Trudeau was reluctant to include it because it gave legislatures and Parliament the ability to breach individual rights and freedoms. He felt that providing them with the ability to show that their laws were reasonable and justifiable in the circumstances using section 1 of the Charter - the reasonable limits clause - should be sufficient to safeguard parliamentary supremacy. He finally capitulated when the five-year sunset clause was added.
During the 1981 negotiations, Ontario Attorney General Roy McMurtry predicted that, given the public popularity of the Charter, provinces would likely not use the
notwithstanding clause
Also called the 'override clause', allows Parliament or provincial legislatures to override or ignore certain sections of the Charter of Rights and Freedoms when they are crafting legislation. It allows legislation to exist notwithstanding that it is in breach of the Charter of Rights and Freedoms. The Notwithstanding Clause can only be used in reference to section 2 (fundamental freedoms), sections 7 to 14 (legal rights) and section 15 (equality rights), and it can only be invoked for 5 years at a time.
very often. It would come at too high a political cost. In general, he has been proved right.
Immediately after the entrenchment of the Charter, Québec Premier René Lévesque, in symbolic protest, declared every bill passed by the National Assembly to operate notwithstanding the Charter. The practice lasted until 1987, with the election of Robert Bourassa’s Liberals.
Its most famous use, however, came from Bourassa, who, in 1988, passed an amendment to Québec’s French Language Charter to restrict the use of English-language business signage, despite the Supreme Court’s decision that the law violated freedom of expression.
Trudeau, 1980 Constitutional Conference
1982 - Today
The Charter’s Legacy
1982 - Today
The Charter’s Legacy
The Rights Revolution
The constitutional entrenchment of the Canadian Charter of Rights and Freedoms brought on what could be called a rights revolution in Canada.
The Charter has had an impact on issues from criminal procedure to racial discrimination, abortion rights, Sunday shopping, refugee processing, health care, right to strike, and same-sex marriage. Broader legal protections have been granted through court actions to the accused and convicted, women, minority language groups, ethnic, religious and LGBTQ2 groups, and those immigrating to our country. True to Pierre Trudeau’s vision, the Charter has helped to make Canada a fairer and more equal society.
To most Canadians, the Charter has become an important national symbol because it sets out our values and principles. The rights and freedoms contained in it provide a legal and moral framework for governments and for those living in the country.
The rights and freedoms contained in it provide a legal and moral framework for governments and for those living in the country.
HARPER APOLOGIZES FOR RESIDENTIAL SCHOOLS, 2008
Individuals vs Collective Concerns
Individuals vs Collective Concerns
There is a tension between the Charter’s built-in individualism and Indigenous Peoples collective concerns. Likewise, one of the key issues for Québec in the 80s and 90s was the defence of the collective rights of francophone Quebecers.
In 1995, the House of Commons The “lower” legislative assembly of Parliament (relative to the Senate’s “upper” house) in the Canadian Parliament. The House is composed of the popularly elected representatives of ridings (electoral districts) across Canada. recognized Québec as a “distinct society” and in 2006, it recognized them as “a nation within a united Canada.”
This followed the failure of the
Meech Lake
A set of proposed changes to the Constitution agreed upon by the first ministers at a meeting called by Prime Minister Brian Mulroney and held at Meech Lake in Gatineau, Québec, in April, 1987. It was an effort to gain the endorsement of Québec to the Constitution that was lacking earlier in the decade. Measures included naming Québec a “distinct society” in the Constitution, and altering the amending formula to give Québec more power with respect to any proposed changes. Pierre Trudeau came out in opposition, as did Indigenous groups and others who were angry about a lack of consultation. Ultimately, it was not approved by all provinces in time to meet the agreed deadline - it expired on June 23, 1990, which was perceived as another betrayal by many in Québec.
and
Charlottetown Accords
An attempt, in 1992, to revise the Constitution to gain the endorsement of Québec, after the death of the Meech Lake Accord in 1990. Along with several of the provisions of Meech, it had a “Canada Clause” setting out a general view of the nation (including Québec as a “distinct society”), as well as a Social Charter, meant to articulate collective principles and goals not included in the Charter of Rights and Freedoms (on health care, education, labour rights and other matters), and a recognition of the Indigenous right to self-government. It was brought to public referendum — one in Québec and another in the rest of Canada — on October 26, 1992, and was defeated.
and the near miss of the second Québec sovereignty referendum that would have approved Québec’s separation from Canada.
The Royal Commission on Aboriginal Aboriginal is the collective term used in the Constitution to describe the original peoples of North America and their descendants and includes First Nations, Inuit, and Métis. See also: Indigenous. Peoples (RCAP) in 1996 and the Truth and Reconciliation Commission (TRC) Report in 2015 both highlighted the significant breaches of promises made by the federal governments to Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes. Peoples and its failure to fully recognize their collective rights.
Beginning in the 1980’s, Canadian courts began to recognize some collective rights for Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes. Peoples but both the courts and governments across the country have a long way to go in acting on the recommendations in the RCAP and the TRC. Section 35, the Aboriginal Aboriginal is the collective term used in the Constitution to describe the original peoples of North America and their descendants and includes First Nations, Inuit, and Métis. See also: Indigenous. rights section of the Constitution, not part of the Charter of Rights and Freedoms, has been helpful but costly and time-consuming for Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes. Peoples to use to assert their collective rights in the courts.
The Supreme Court of Canada
Order in the Courts
Order in the Courts
The introduction of the Charter substantially reinforced the role of courts, and particularly the Supreme Court, as the primary constitutional guardian and protector of the rights of citizens.
The Court has made decisions that affect the length of time an accused person should have to wait for a trial, what the meaning of the word “reasonable” means in a police search of cell phone information, when a person can access medical assistance in dying, and what religious freedom means in Canada.
The Charter has led to debates about the “judicialization” of politics and the “activism” of the courts. Critics express concerns that the Charter has bred a “culture of entitlement” among litigating interest groups, and that non-elected judges have intervened too much in the democratic process by wading in on issues that should properly be left to Parliament and the legislatures. The competing view is that the courts are playing their proper role in interpreting the rights and freedoms in the Charter and in ensuring that the government justifies any violations of those rights and freedoms.
Going to court to fight for rights and freedoms can be expensive. The Court Challenges Program, created by Pierre Trudeau in 1977, provided financial support for individuals and groups to bring cases seeking equality rights — at first for minority language rights, and then for other concerns after the Charter was in place. The program was shut down in 1994 by Prime Minister Brian Mulroney’s government and again in 2006 by Prime Minister Stephen Harper. It was reinstated with a broader mandate by Prime Minister Justin Trudeau in 2017.
Some Notable Charter Cases
Some Notable Charter Cases
Here are a few of the landmark Charter court cases on significant social issues since 1982.
Sunday closing and freedom of religion:
R v Big M Drug Mart, 1985 – The Supreme Court struck down the Lord’s Day Act because it violated section 2 (a), freedom of religion, in the Canadian Charter of Rights and Freedoms The Charter sets out the rights and freedoms that are officially guaranteed by the Canadian Constitution, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It is Part 1, sections 1-34 of the Constitution Act, 1982. . The Court found that requiring stores to be closed on Sundays was a religious-based requirement that violated freedom of religion.
Prohibiting hate speech is a reasonable violation of freedom of expression
R v Keegstra (1990) – The Supreme Court upheld the Criminal Code provision that prohibited the willful promotion of hatred against an identifiable group, even though it was a violation of freedom of expression under section 2 (b) of the Charter of Rights. It found that this provision of the Criminal Code was a reasonable limit on freedom of expression.
Physician-assisted dying
Carter v Canada (Attorney General), (2015) – Sections 241 and 14 of the Criminal Code were found to be of no force and effect to the extent that they prohibit physician-assisted death because they deprive competent adults whose death is reasonably foreseeable of their right to life, liberty and security of the person under section 7 of the Charter.
Refugee status and right to a hearing
Singh v Canada (Minister of Employment and Immigration), 1985 – The Supreme Court found that seven foreign nationals were protected by the Charter and their section 7 rights to security of the person had been violated when the government refused to grant them a hearing.
Abortion rights
R. v Morgentaler (1988) – The Supreme Court of Canada ruled that the law requiring women to receive certification from a Therapeutic Abortion Committee before they could have an abortion, as required by the Criminal Code, was a violation of section 7 right to security of the person because it put the women at risk of physical and psychological harm.
Sexual orientation
Vriend v Alberta, 1998 – The Supreme Court of Canada found that the Individual Rights Protection Act (Alberta’s Human Rights Act) violated Delwyn Vriend’s section 15 equality rights because it did not include protection for sexual orientation. The Court “read in” sexual orientation to the Act.
Disability rights and the positive duty of governments
Eldridge v British Columbia (Attorney General), 1997 – The Supreme Court of Canada ruled that the government of British Columbia must provide “sign language” interpreters in the delivery of medical services where doing so is necessary to ensure effective communication. This positive duty flows from section 15 of the Charter.
Extradition and the death penalty
United States v Burns, 2001 – The Supreme Court of Canada found that extradition of individuals to places where they may face the death penalty is a violation of section 7 Charter right to life, liberty and security of the person. The Court also referenced the duty to protect the innocent which is based in part on section 11 of the Charter which includes a right to be presumed innocent.
Same-sex marriage
Halpern v Canada (AG) (2003) – Ontario Court of Appeal found that the common law definition of marriage, which defined marriage as between one man and one woman, violated section 15 of the Canadian Charter of Rights and Freedoms The Charter sets out the rights and freedoms that are officially guaranteed by the Canadian Constitution, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It is Part 1, sections 1-34 of the Constitution Act, 1982. .
Social issues
Detention and deportation
Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 – The Supreme Court of Canada ruled that the security certificate process violated sections 7, 9 and 10 of the Charter of Rights and Freedoms and struck down the security certificate legislation – sections 33 and 77 – 85 of the Immigration and Refugee Protection Act.
Government's duty
Canada (Prime Minister) v Khadr, 2010 – The Supreme Court of Canada ruled that the participation of Canadian officials in the interrogation of Omar Khadr at Guantanamo Bay “offended the most basic Canadian standards of the treatment of detained youth suspects” and violated his section 7 right to liberty and security of the person under the Charter. The Court did not grant the request to repatriate Mr. Khadr to Canada in this case.
Safe-injection sites and harm reduction
Canada (Attorney General) v PHS Community Services Society, 2011 (also known as the Insite case) – The Supreme Court of Canada ruled, among other things, that the government’s failure to grant an exemption to Insite under the Controlled Drug and Substances Act limited Insite users’ section 7 rights to life, liberty and security of the person and breached the principles of fundamental justice because it was arbitrary and grossly disproportionate. The Court found the government’s rationale for refusing to grant the exemption to Insite was not reasonable.
Sex work
Canada (Attorney General) v Bedford, 2013. – While prostitution is legal in Canada, many activities related to prostitution were illegal. In 2013, the Supreme Court of Canada found that laws which outlawed public communication for the purposes of prostitution, operating a bawdy house, or living off the avails of prostitution were unconstitutional because they violate the Charter section 7 security interests of prostitutes.
Legacy: the Charter
What does the Charter of Rights and Freedoms protect, how was it created, and what effect has it had on our country?
The Legacy of the Charter
What the Charter Protects
How The Charter Developed
First Drafts
The Final Battles
The Language Issue
Charter not Popular with Provinces
The Notwithstanding Clause Controversies
The Charter’s Legacy
Individuals vs Collective Concerns
Order in the Courts
Some Notable Charter Cases
