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The Canadian Charter of Rights and Freedoms (also known as The Charter of Rights and Freedoms or simply the Charter, French: La Charte canadienne des droits et libertés) is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all levels of government. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was signed into law by Queen Elizabeth II of Canada on April 17 1982 (along with the rest of the Act).

The Charter was preceded by the Canadian Bill of Rights, which was enacted in 1960. However, the Bill of Rights was only a federal statute, rather than a constitutional document. As a federal statute, it was limited in scope, was easily amendable by Parliament, and it had no application to provincial laws. The Supreme Court of Canada also narrowly interpreted the Bill of Rights and the Court was reluctant to declare laws inoperative.[1] The relative ineffectiveness of the Canadian Bill of Rights motivated many to improve rights protections in Canada. The movement for human rights and freedoms that emerged after World War II also wanted to entrench the principles enunciated in the Universal Declaration of Human Rights.[2] The British Parliament formally enacted the Charter as a part of the Canada Act 1982 at the request of the Parliament of Canada in 1982, the result of the efforts of the Government of Prime Minister Pierre Trudeau.

One of the most notable effects of the adoption of the Charter was to greatly expand the scope of judicial review, because the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Bill of Rights. The courts, when confronted with violations of Charter rights, have struck down unconstitutional federal and provincial statutes and regulations or parts of statutes and regulations, as they did when Canadian case law was primarily concerned with resolving issues of federalism. However, the Charter granted new powers to the courts to enforce remedies that are more creative and to exclude more evidence in trials. These powers are greater than what was typical under the common law and under a system of government that, influenced by Canada's mother country the United Kingdom, was based upon Parliamentary supremacy. As a result, the Charter has attracted both broad support from a majority of the Canadian electorate and criticisms by opponents of increased judicial power. The Charter only applies to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to the common law, not to private activity.

Contents

Features

Canadian Charter
of Rights and Freedoms

Part of the Constitution Act, 1982. [  ]
Preamble
Guarantee of Rights and Freedoms
1
Fundamental Freedoms
2
Democratic Rights
3, 4, 5
Mobility Rights
6
Legal Rights
7, 8, 9, 10, 11, 12, 13, 14
Equality Rights
15
Official Languages of Canada
16, 16.1, 17, 18, 19, 20, 21, 22
Minority Language Education Rights
23
Enforcement
24
General
25, 26, 27, 28, 29, 30, 31
Application of Charter
32, 33
Citation
34

Under the Charter, persons physically present in Canada have numerous civil and political rights. Most of the rights can be exercised by any legal person, (the Charter does not define the corporation as a "legal person"),[3] but a few of the rights belong exclusively to natural persons, or (as in sections 3 and 6) only to citizens of Canada. The rights are enforceable by the courts through section 24 of the Charter, which allows courts discretion to award remedies to those whose rights have been denied. This section also allows courts to exclude evidence in trials if the evidence was acquired in a way that conflicts with the Charter and might damage the reputation of the justice system. Section 32 confirms that the Charter is binding on the federal government, the territories under its authority, and the provincial governments. The rights and freedoms enshrined in the Charter include:

Fundamental freedoms (section 2), namely freedom of conscience, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press and of other media of communication, freedom of peaceful assembly, and freedom of association.
Democratic rights: generally, the right to participate in political activities and the right to a democratic form of government:
Section 3: the right to vote and to be eligible to serve as member of a legislature.
Section 4: the maximum duration of legislatures is set at five years.
Section 5: an annual sitting of legislatures is required as a minimum.
Mobility rights: (section 6): the right to enter and leave Canada, and to move to and take up residence in any province, or to reside outside Canada.
Legal rights: rights of people in dealing with the justice system and law enforcement, namely:
Section 7: right to life, liberty, and security of the person.
Section 8: right from unreasonable search and seizure.
Section 9: freedom from arbitrary detainment or imprisonment.
Section 10: right to legal counsel and the guarantee of habeas corpus.
Section 11: rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.
Section 12: right not to be subject to cruel and unusual punishment.
Section 13: rights against self-incrimination
Section 14: rights to an interpreter in a court proceeding.
Equality rights: (section 15): equal treatment before and under the law, and equal protection and benefit of the law without discrimination.
Language rights: generally, the right to use either the English or French language in communications with Canada's federal government and certain provincial governments. Specifically, the language laws enshrined in the Charter include:
Section 16: English and French are the official languages of Canada and New Brunswick.
Section 16.1: the English and French-speaking communities of New Brunswick have equal rights to educational and cultural institutions.
Section 17: the right to use either official language in Parliament or the New Brunswick legislature.
Section 18: the statutes and proceedings of Parliament and the New Brunswick legislature are to be printed in both official languages.
Section 19: both official languages may be used in federal and New Brunswick courts.
Section 20: the right to communicate with and be served by the federal and New Brunswick governments in either official language.
Section 21: other constitutional language rights outside the Charter regarding English and French are sustained.
Section 22: existing rights to use languages besides English and French are not affected by the fact that only English and French have language rights in the Charter. (Hence, if there are any rights to use Aboriginal languages anywhere they would continue to exist, though they would have no direct protection under the Charter.)
Minority language education rights: (Section 23): rights for certain citizens belonging to French or English-speaking minority communities to be educated in their own language.

All of these rights are subject to the limitations clause (section 1) and some of these rights are subject to the notwithstanding clause (section 33). The limitations clause in section 1 allows governments to justify certain infringements of Charter rights. Every case in which a court discovers a violation of the Charter would therefore require a section 1 analysis to determine if the law can still be upheld. Infringements are upheld if the purpose for the government action is to achieve what would be recognized as an urgent or important objective in a free society, and if the infringement can be "demonstrably justified." Section 1 has thus been used to uphold laws against objectionable conduct such as hate speech (e.g., in R. v. Keegstra) and obscenity (e.g., in R. v. Butler). Section 1 also confirms that the rights listed in the Charter are guaranteed.

The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7–15 for up to five years, subject to renewal. The Canadian federal government has never invoked it, and some have speculated that its use would be politically costly. In the past, the notwithstanding clause was invoked routinely by the province of Quebec (which did not support the enactment of the Charter but is subject to it nonetheless). The provinces of Saskatchewan and Alberta have also invoked the notwithstanding clause, to end a strike and to protect an exclusively heterosexual definition of marriage,[4] respectively. (Note that Alberta's use of the notwithstanding clause is of no force or effect, since the definition of marriage is federal not provincial jurisdiction.)[5] The territory of Yukon also passed legislation once that invoked the notwithstanding clause, but the legislation was never proclaimed in force.[6]

Other sections help clarify how the Charter works in practice. These include,

Section 25, which states that the Charter does not derogate existing Aboriginal rights and freedoms. Aboriginal rights, including treaty rights, receive more direct constitutional protection under section 35 of the Constitution Act, 1982.
Section 26, which clarifies that other rights and freedoms in Canada are not invalidated by the Charter.
Section 27, which requires the Charter to be interpreted in a multicultural context.
Section 28, which states all Charter rights are guaranteed equally to men and women.
Section 29, which confirms the rights of religious schools are preserved.
Section 30, which clarifies the applicability of the Charter in the territories.
Section 31, which confirms that the Charter does not extend the rights of legislatures.

Finally, section 34 states that the first 34 sections of the Constitution Act, 1982 may be collectively referred to as the "Canadian Charter of Rights and Freedoms".

History

Printed copies of the Charter of Rights and Freedoms

Many of the rights and freedoms that are protected under the Charter, including the rights to freedom of speech, habeas corpus and the presumption of innocence,[7] have their roots in a set of Canadian laws and legal precedents sometimes known as the Implied Bill of Rights. Many of these rights were also included in the Canadian Bill of Rights, which the Canadian Parliament enacted in 1960. However, the Canadian Bill of Rights had a number of shortcomings. Unlike the Charter, it was an ordinary Act of Parliament, which could be amended by a simple majority of Parliament, and it was applicable only to the federal government. The courts also chose to interpret the Bill of Rights conservatively, only on rare occasions applying it to find a contrary law inoperative. The Bill of Rights did not contain all of the rights that are now included in the Charter, omitting, for instance, the right to vote and freedom of movement within Canada.

The centennial of Canadian Confederation in 1967 aroused greater interest within the government in constitutional reform. Such reforms would include improving safeguards of rights, as well as patriation of the Constitution, meaning the British Parliament would no longer have to approve constitutional amendments. Subsequently, Attorney General Pierre Trudeau appointed law professor Barry Strayer to research a potential bill of rights. While writing his report, Strayer consulted with a number of notable legal scholars, including Walter Tarnopolsky. Strayer's report advocated a number of ideas that were later incorporated into the Charter, including protection for language rights. Strayer also advocated excluding economic rights. Finally, he recommended allowing for limits on rights. Such limits are included in the Charter's limitation and notwithstanding clauses.[8] In 1968, Strayer was made the Director of the Constitutional Law Division of the Privy Council Office and in 1974 he became Assistant Deputy Minister of Justice. During those years, Strayer played a role in writing the bill that was ultimately adopted.

Meanwhile, Trudeau, who had become Liberal leader and prime minister in 1968, still very much wanted a constitutional bill of rights. The federal government and the provinces discussed creating one during negotiations for patriation, which resulted in the Victoria Charter in 1971. This never came to be implemented. However, Trudeau continued with his efforts to patriate the Constitution, and promised constitutional change during the 1980 Quebec referendum. He would succeed in 1982 with the passage of the Canada Act 1982. This enacted the Constitution Act, 1982.

The inclusion of a charter of rights in the Constitution Act was a much-debated issue. Trudeau spoke on television in October 1980,[2] and announced his intention to constitutionalize a bill of rights that would include fundamental freedoms, democratic guarantees, freedom of movement, legal rights, equality and language rights. He did not want a notwithstanding clause. While his proposal gained popular support, provincial leaders opposed the potential limits on their powers. The federal Progressive Conservative opposition feared liberal bias among judges, should courts be called upon to enforce rights. Additionally, the British Parliament cited their right to uphold Canada's old form of government. At a suggestion of the Conservatives, Trudeau's government thus agreed to a committee of Senators and MPs to further examine the bill of rights as well as the patriation plan. During this time, 90 hours were spent on the bill of rights alone, all filmed for television, while civil rights experts and advocacy groups put forward their perceptions on the Charter's flaws and omissions and how to remedy them. As Canada had a parliamentary system of government, and as judges were perceived not to have enforced rights well in the past, it was questioned whether the courts should be named as the enforcers of the Charter, as Trudeau wanted. Conservatives argued that elected politicians should be trusted instead. It was eventually decided that the responsibility should go to the courts. At the urging of civil libertarians, judges could even now exclude evidence in trials if acquired in breach of Charter rights in certain circumstances, something the Charter was not originally going to provide for. As the process continued, more features were added to the Charter, including equality rights for people with disabilities, more sex equality guarantees and recognition of Canada's multiculturalism. The limitations clause was also reworded to focus less on the importance of parliamentary government and more on justifiability of limits in free societies; the latter logic was more in line with rights developments around the world after World War II.[9]

In its decision in the Patriation Reference (1981), the Supreme Court of Canada had ruled there was a tradition that some provincial approval should be sought for constitutional reform. As the provinces still had doubts about the Charter's merits, Trudeau was forced to accept the notwithstanding clause to allow governments to opt out of certain obligations. The notwithstanding clause was accepted as part of a deal called the Kitchen Accord, negotiated by the federal Attorney General Jean Chrétien, Ontario's justice minister Roy McMurtry and Saskatchewan's justice minister Roy Romanow. Pressure from provincial governments (which in Canada have jurisdiction over property) and from the country's left wing, especially the New Democratic Party, also prevented Trudeau from including any rights protecting private property.[10]

Nevertheless, Quebec did not support the Charter (or the Canada Act 1982), with "conflicting interpretations" as to why. The opposition could have owed to the Parti Québécois leadership being allegedly uncooperative, because it was more committed to gaining sovereignty for Quebec. It could have owed to Quebec leaders being excluded from the negotiation of the Kitchen Accord, which they saw as being too centralist. It could have owed to provincial leaders' objections to the Accord's provisions relating to the process of future constitutional amendment.[11] They also opposed the inclusion of mobility rights and minority language education rights.[12] The Charter is still applicable in Quebec because all provinces are bound by the Constitution. However, Quebec's opposition to the 1982 patriation package has led to two failed attempts to amend the Constitution (the Meech Lake Accord and Charlottetown Accord) which were designed primarily to obtain Quebec's political approval of the Canadian constitutional order.

While the Canadian Charter of Rights and Freedoms was adopted in 1982, it was not until 1985 that the main provisions regarding equality rights (section 15) came into effect. The delay was meant to give the federal and provincial governments an opportunity to review pre-existing statutes and strike potentially unconstitutional inequalities.

The Charter has been amended since its enactment. Section 25 was amended in 1983 to explicitly recognize more rights regarding Aboriginal land claims, and section 16.1 was added in 1993. A proposed Rights of the Unborn Amendment in 1986–1987, which would have enshrined fetal rights, failed in the federal Parliament. Other proposed amendments to the Constitution, included in the Charlottetown Accord of 1992, were never passed. These amendments would have specifically required the Charter to be interpreted in a manner respectful of Quebec's distinct society, and would have added further statements to the Constitution Act, 1867 regarding racial and sexual equality and collective rights, and about minority language communities. Though the Accord was negotiated among many interest groups, the resulting provisions were so vague that Trudeau, then out of office, feared they would actually conflict with and undermine the Charter's individual rights. He felt judicial review of the rights might be undermined if courts had to favour the policies of provincial governments, as governments would be given responsibility over linguistic minorities. Trudeau thus played a prominent role in leading the popular opposition to the Accord.[13]

Interpretation and enforcement

The task of interpreting and enforcing the Charter falls to the courts, with the Supreme Court of Canada being the ultimate authority on the matter.

With the Charter's supremacy confirmed by section 52 of the Constitution Act, 1982, the courts continued their practice of striking down unconstitutional statutes or parts of statutes as they had with earlier case law regarding federalism. However, under section 24 of the Charter, courts also gained new powers to enforce creative remedies and exclude more evidence in trials. Courts have since made many important decisions, including R. v. Morgentaler (1988), which struck down Canada's abortion law, and Vriend v. Alberta (1998), in which the Supreme Court found the province's exclusion of homosexuals from protection against discrimination violated section 15. In the latter case, the Court then read the protection into the law.

Courts may receive Charter questions in a number of ways. Rights claimants could be prosecuted under a criminal law that they argue is unconstitutional. Others may feel government services and policies are not being dispensed in accordance with the Charter, and apply to lower-level courts for injunctions against the government (as was the case in Doucet-Boudreau v. Nova Scotia (Minister of Education)). A government may also raise questions of rights by submitting reference questions to higher-level courts; for example, Prime Minister Paul Martin's government approached the Supreme Court with Charter questions as well as federalism concerns in the case Re Same-Sex Marriage (2004). Provinces may also do this with their superior courts. The government of Prince Edward Island initiated the Provincial Judges Reference by asking its provincial Supreme Court a question on judicial independence under section 11.

The building of the Supreme Court of Canada, the chief authority on the interpretation of the Charter

In several important cases, judges developed various tests and precedents for interpreting specific provisions of the Charter. These include the Oakes test for section 1, set out in the case R. v. Oakes (1986), and the Law test for section 15, developed in Law v. Canada (1999). Since Re B.C. Motor Vehicle Act (1985), various approaches to defining and expanding the scope of fundamental justice (the Canadian name for natural justice or due process) under section 7 have been adopted. (For more information, see the articles on each Charter section).

In general, courts have embraced a purposive interpretation of Charter rights. This means that since early cases like Hunter v. Southam (1984) and R. v. Big M Drug Mart (1985), they have concentrated not on the traditional, limited understanding of what each right meant when the Charter was adopted in 1982, but rather on changing the scope of rights as appropriate to fit their broader purpose. This is tied to the generous interpretation of rights, as the purpose of the Charter provisions is assumed to be to increase rights and freedoms of people in a variety of circumstances, at the expense of the government powers. Constitutional scholar Peter Hogg has approved of the generous approach in some cases, although for others he argues the purpose of the provisions was not to achieve a set of rights as broad as courts have imagined.[14] Indeed, this approach has not been without its critics. Alberta politician Ted Morton and political scientist Rainer Knopff have been very critical of this phenomenon. Although they feel the basis for the approach, the living tree doctrine (the classical name for generous interpretations of the Canadian Constitution), is sound, they argue Charter case law has been more radical. When the living tree doctrine is applied right, the authors claim, "The elm remained an elm; it grew new branches but did not transform itself into an oak or a willow." The doctrine can be used, for example, so a right is upheld even when a government threatens to violate it with new technology, as long as the essential right remains the same; but the authors claim that the courts have used the doctrine to "create new rights." As an example, the authors note that the Charter right against self-incrimination has been extended to cover scenarios in the justice system that had previously been unregulated by self-incrimination rights in other Canadian laws.[15]

Another general approach to interpreting Charter rights is to consider legal precedent regarding the United States Bill of Rights, which influenced the text of the Charter and has generated a great deal of thoughts on the extent of rights in a common law, democratic system and how bills of rights should be enforced by courts. However, American precedent is not considered infallible. The Canadian Supreme Court has referred to the Canadian and American bills as being "born to different countries in different ages and in different circumstances."[16]

Public interest groups frequently intervene in cases to make arguments on how to interpret the Charter. Some examples are the British Columbia Civil Liberties Association, Canadian Civil Liberties Association, the Canadian Mental Health Association, the Canadian Labour Congress, the Women's Legal Education and Action Fund (LEAF), and REAL Women of Canada. The purpose of such interventions is to assist the court and to attempt to influence the court to render a decision favourable to the legal interests of the group.

A further approach to the Charter, taken by the courts, is the dialogue principle, which involves greater participation by elected governments. This approach involves governments drafting legislation in response to court rulings and courts acknowledging the effort if the new legislation is challenged.

Comparisons with other human rights instruments

The United States Bill of Rights influenced the text of the Charter, but its rights provisions are interpreted more conservatively. Canadian and American cases nevertheless sometimes have similar outcomes because the broader Charter rights are limited by section 1 of the Charter.

Some Canadian Members of Parliament saw the movement to entrench a charter as contrary to the British model of Parliamentary supremacy. Others would say that the European Convention on Human Rights (ECHR) has now limited British parliamentary power to a greater degree than the Canadian Charter limited the power of the Canadian Parliament and provincial legislatures. Hogg has speculated that the British adopted the Human Rights Act 1998, which allows the ECHR to be enforced directly in domestic courts, partly because they were inspired by the similar Canadian Charter.[17]

The Canadian Charter bears a number of similarities to the European Convention, specifically in relation to the limitations clauses contained in the European document.[18] Because of this similarity with European human rights law, the Supreme Court of Canada turns not only to the Constitution of the United States case law in interpreting the Charter, but also to European Court of Human Rights cases.

The core distinction between the United States Bill of Rights and Canadian Charter is the existence of the limitations and notwithstanding clauses. Canadian courts have consequently interpreted each right more expansively. However, due to the limitations clause, where a violation of a right exists, the law will not necessarily grant protection of that right. In contrast, rights under the US Bill of Rights are absolute and so a violation will not be found until there has been sufficient encroachment on those rights. The sum effect is that both constitutions provide comparable protection of many rights. Fundamental justice (in section 7 of the Canadian Charter) is therefore interpreted to include more legal protections than due process, which is its US equivalent. Freedom of expression in section 2 also has a more wide-ranging scope than the First Amendment to the United States Constitution's freedom of speech.[19] In RWDSU v. Dolphin Delivery Ltd. (1986), the Canadian Supreme Court considered picketing of the kind the US First Amendment did not permit, as it was disruptive conduct (though there was some speech involved that the First Amendment might otherwise protect). The Supreme Court, however, ruled the picketing, including the disruptive conduct, were fully protected under section 2 of the Charter. The Court then relied on section 1 to find the injunction against the picketing was just.[20] The limitations clause has also allowed governments to enact laws that would be considered unconstitutional in the US. The Supreme Court of Canada has upheld some of Quebec's limits on the use of English on signs and has upheld publication bans that prohibit media from mentioning the names of juvenile criminals.

Section 28 of the Charter performs a function similar to that of the unratified Equal Rights Amendment in the US. While that proposed amendment had many critics, there was no comparable opposition to the Charter's section 28.[21] Still, Canadian feminists had to stage large protests to demonstrate support for the inclusion of the section.

The International Covenant on Civil and Political Rights has several parallels with the Canadian Charter, but in some cases the Covenant goes further with regard to rights in its text. For example, a right to legal aid has been read into section 10 of the Charter (the right to counsel), but the Covenant explicitly guarantees the accused need not pay "if he does not have sufficient means."[22]

The Canadian Charter has little to say, explicitly at least, about economic and social rights. On this point, it stands in marked contrast with the Quebec Charter of Human Rights and Freedoms and with the International Covenant on Economic, Social and Cultural Rights. There are some who feel economic rights ought to be read into section 7 rights to security of the person and section 15 equality rights to make the Charter similar to the Covenant. The rationale is that economic rights can relate to a decent standard of living and can help the civil rights flourish in a livable environment. Canadian courts, however, have been hesitant in this area, stating that economic rights are political questions and adding that as positive rights, economic rights are of questionable legitimacy.[23]

The Charter itself influenced the Bill of Rights in the Constitution of South Africa.[23] The limitations clause under section 36 of the South African law has been compared to section 1 of that Charter.[24]

The Charter and national values

The "March of Hearts" rally for same-sex marriage equality under the Charter in 2004.

The Charter was intended to be a source for national values and national unity. As Professor Alan Cairns noted, "The initial federal government premise was on developing a pan-Canadian identity."[25] Trudeau himself later wrote in his Memoirs that "Canada itself" could now be defined as a "society where all people are equal and where they share some fundamental values based upon freedom," and that all Canadians could identify with the values of liberty and equality.[26]

The Charter's unifying purpose was particularly important to the mobility and language rights. According to author Rand Dyck, some scholars believe section 23, with its minority language education rights, "was the only part of the Charter with which Pierre Trudeau was truly concerned."[27] Through the mobility and language rights, French Canadians, who have been at the centre of unity debates, are able to travel throughout all Canada and receive government and educational services in their own language. Hence, they are not confined to Quebec (the only province where they form the majority and where most of their population is based), which would polarize the country along regional lines. The Charter was also supposed to standardize previously diverse laws throughout the country and gear them towards a single principle of liberty.[28]

Former premier of Ontario Bob Rae has stated that the Charter "functions as a symbol for all Canadians" in practice because it represents the core value of freedom. Academic Peter Russell has been more skeptical of the Charter's value in this field. Cairns, who feels the Charter is the most important constitutional document to many Canadians, and that the Charter was meant to shape the Canadian identity, has also expressed concern that groups within society see certain provisions as belonging to them alone rather than to all Canadians.[17] It has also been noted that issues like abortion and pornography, raised by the Charter, tend to be controversial.[28] Still, opinion polls in 2002 showed Canadians felt the Charter significantly represented Canada, although many were unaware of the document's actual contents.[29]

The only values mentioned by the Charter's preamble are recognition for the supremacy of God and the rule of law, but these have been controversial and of minor legal consequence. In 1999, MP Svend Robinson brought forward a failed proposal before the Canadian House of Commons that would have amended the Charter by removing the mention of God, as he felt it did not reflect Canada's diversity.

Section 27 also recognizes multiculturalism, which the Department of Canadian Heritage argues is prized among Canadians.[30]

Criticism

While the Charter has enjoyed a great deal of popularity, with 82% of Canadians describing it as a "good thing" in opinion polls in 1987 and 1999,[17] the document has also been subject to published criticisms from both sides of the political spectrum. One left-wing critic is Professor Michael Mandel, who wrote that in comparison to politicians, judges do not have to be as sensitive to the will of the electorate, nor do they have to make sure their decisions are easily understandable to the average Canadian citizen. This, in Mandel's view, limits democracy. Mandel has also asserted that the Charter makes Canada more like the United States, especially by serving corporate rights and individual rights rather than group rights and social rights. He has argued that there are several rights that should be included in the Charter, such as a right to health care and a basic right to free education.[31] Hence, the perceived Americanization of Canadian politics is seen as coming at the expense of values more important for Canadians. The union movement has been disappointed in the reluctance of the courts to use the Charter to support various forms of union activity, such as the "right to strike".

Right-wing critics Morton and Knopff have raised several concerns about the Charter, notably by alleging that the federal government has used it to limit provincial powers by allying with various rights claimants and interest groups. In their book The Charter Revolution & the Court Party, Morton and Knopff express their suspicions of this alliance in detail, accusing the Trudeau and Chrétien governments of funding litigious groups. For example, these governments used the Court Challenges Program to support minority language educational rights claims. Morton and Knopff also claim that crown counsel have intentionally lost cases in which the government was taken to court for allegedly violating rights, particularly gay rights and women's rights.[32]

Political scientist Rand Dyck, in observing these criticisms, notes that while judges have had their scope of review widened, they have still upheld most laws challenged on Charter grounds. With regard to litigious interest groups, Dyck points out that "the record is not as clear as Morton and Knopff imply. All such groups have experienced wins and losses."[33]

The political philosopher Charles Blattberg has criticized the Charter for contributing to the fragmentation of the country, at both the individual and group levels. In encouraging discourse based upon rights, the Charter is said to inject an adversarial spirit into Canadian politics, making it difficult to realize the common good. Blattberg also claims that the Charter undercuts the Canadian political community since it is ultimately a cosmopolitan document. Finally, he argues that people would be more motivated to uphold individual liberties if they were expressed with terms that are much "thicker" (less abstract) than rights.[34]

See also

References

  • G.-A Beaudoin and E. Ratushny, The Canadian Charter of Rights and Freedoms 2nd ed., Carswell, Toronto, 1989.
  • P.W. Hogg, Constitutional law of Canada, 4th ed., Carswell: Scarborough with Supplement to Constitutional Law of Canada (2002-)
  • J.P. Humphrey, Human Rights and the United Nations: A Great Adventure, New York: Transnational Publishers, 1984.
  • Leishman, Rory, Against Judicial Activism: The Decline of Freedom and Democracy in Canada, McGill-Queen's University Press, 2006, ISBN 0773530541
  • J.E. Magnet, Constitutional Law, 8th ed. (2001).

Notes

  1. ^ Only one federal law was declared inoperative by the Supreme Court of Canada: R. v. Drybones (1969), [1970] S.C.R. 282. For an example of the narrow interpretation of the Supreme Court of Canada see Attorney General of Canada v. Lavell, [1974] S.C.R. 1349.
  2. ^ Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, page 689.
  3. ^ Hogg, Constitutional Law of Canada. 2003 Student Ed., pages 741–742
  4. ^ Marriage Act, R.S.A. 2000, c. M-5. Accessed URL on March 10, 2006.
  5. ^ McKnight, Peter. "Notwithstanding what?" The Vancouver Sun, January 21, 2006, pg. C.4.
  6. ^ Library of Parliament, Parliamentary Information and Research Service, The Notwithstanding Clause of the Charter, prepared by David Johansen, 1989, as revised May 2005. Accessed August 7, 2006.
  7. ^ "Sources of Canadian Law", Department of Justice Canada. URL accessed on March 20, 2006.
  8. ^ Strayer, Barry L. "My Constitutional Summer of 1967", Reflections on the Charter, Department of Justice Canada. URL accessed on March 18, 2006.
  9. ^ Weinrib, Lorraine Eisenstat. "Trudeau and the Canadian Charter of Rights and Freedoms: A Question of Constitutional Maturation." In Trudeau's Shadow: The Life and Legacy of Pierre Elliott Trudeau. Edited by Andrew Cohen and JL Granatstein. Vintage Canada, 1998, pages 269–272.
  10. ^ David Johansen, "PROPERTY RIGHTS AND THE CONSTITUTION," Library of Parliament (Canada), Law and Government Division, October 1991.
  11. ^ "The Night of Long Knives", Canada: A People's History. CBC. URL accessed on April 8, 2006.
  12. ^ CBC evening news broadcast, November 5, 1981. Online at CBC Archives, [1], beginning at timepoint 4:04 of the clip. Accessed August 8, 2006.
  13. ^ Behiels, Michael D. "Who Speaks for Canada? Trudeau and the Constitutional Crisis." In Trudeau's Shadow: The Life and Legacy of Pierre Elliott Trudeau, page 346.
  14. ^ Hogg, Constitutional Law of Canada, 2003 Student Ed., pages 722 and 724–725.
  15. ^ Morton, F.L. and Rainer Knopff. The Charter Revolution & the Court Party. Toronto: Broadview Press, 2000, pages 46–47.
  16. ^ Hogg, Constitutional Law of Canada. 2003 Student Ed., pages 732; the case quoted was R. v. Rahey (1987) by Gérard La Forest.
  17. ^ a b c Saunders, Philip. "The Charter at 20", CBC News Online, April 2002. URL accessed on March 17, 2006.
  18. ^ Brice Dickson, "Human Rights in the 21st Century," Amnesty International Lecture, Queen's University, Belfast, 11 November 1999.
  19. ^ Hogg, Constitutional Law of Canada. 2003 Student Ed., pages 732–733.
  20. ^ Manfredi, Christopher P. "The Canadian Supreme Court and American Judicial Review: United States Constitutional Jurisprudence and the Canadian Charter of Rights and Freedoms." The American Journal of Comparative Law, vol. 40, no. 1. (Winter, 1992), pages 12–13.
  21. ^ Women's International Network News, "Women on the Move in Canada." Summer 1993, Vol. 19 Issue 3, page 71.
  22. ^ Hogg, Constitutional Law of Canada. 2003 Student Ed., pages 733–734.
  23. ^ a b Lugtig, Sarah and Debra Parkes, "Where do we go from here?" Herizons, Spring 2002, Vol. 15 Issue 4, page 14.
  24. ^ Brice Dickson, "Human Rights in the 21st Century," Amnesty International Lecture, Queen's University, Belfast, 11 November 1999.
  25. ^ Quoted by Saunders.
  26. ^ Trudeau, Pierre Elliott. Memoirs, Toronto: McClelland & Stewart, 1993, pages 322–323.
  27. ^ Dyck, Rand. Canadian Politics: Critical Approaches. Third ed. Scarborough, Ontario: Nelson Thomson Learning, 2000, page 442.
  28. ^ a b Hogg, Constitutional Law of Canada. 2003 Student Ed., pages 704–705.
  29. ^ Byfield, Joanne. "The right to be ignorant." Report/Newsmagazine (National Edition); December 16, 2002, Vol. 29, Issue 24, page 56.
  30. ^ Guide to the Canadian Charter of Rights and Freedoms. Human Rights Program. Canadian Heritage. URL accessed on March 25, 2006.
  31. ^ Dyck, page 446, summarizing Mandel, Michael, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Wall and Thompson, 1989; revised edition, 1994)
  32. ^ Morton and Knopff, 95. They complain about crown counsels on page 117.
  33. ^ Dyck, page 448.
  34. ^ Blattberg, Charles. Shall We Dance? A Patriotic Politics for Canada. Montreal and Kingston: McGill-Queen's University Press, 2003, especially pages 83–94

External links


Source material

Up to date as of January 22, 2010

From Wikisource

Constitution Act, 1982
Part I: Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms (also known as The Charter of Rights and Freedoms or simply The Charter) is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982. The Charter is intended to protect certain political and civil rights of people in Canada from the policies and actions of all levels of government. It is designed to unify Canadians around a set of principles that embody those rights.Excerpted from Canadian Charter of Rights and Freedoms on Wikipedia, the free encyclopedia.

Contents

Part I: Canadian Charter of Rights and Freedoms

GUARANTEE OF RIGHTS AND FREEDOMS
1. Rights and freedoms in Canada.
FUNDAMENTAL FREEDOMS
2. Fundamental freedoms.
DEMOCRATIC RIGHTS
3. Democratic rights of citizens.
4.
(1) Maximum duration of legislative bodies.
(2) Continuation in special circumstances.
5. Annual sitting of legislative bodies.
MOBILITY RIGHTS
6.
(1) Mobility of citizens.
(2) Rights to move and gain livelihood.
(3) Limitation.
(4) Affirmative action programs.
LEGAL RIGHTS
7. Life, liberty and security of person.
8. Search or seizure.
9. Detention or imprisonment.
10. Arrest or detention.
11. Proceedings in criminal and penal matters.
12. Treatment or punishment.
13. Self-crimination.
14. Interpreter.
EQUALITY RIGHTS
15.
(1) Equality before and under law and equal protection and benefit of law.
(2) Affirmative action programs.
OFFICIAL LANGUAGES OF CANADA
16.
(1) Official languages of Canada.
(2) Official languages of New Brunswick.
(3) Advancement of status and use.
16.1
(1) English and French linguistic communities in New Brunswick.
(2) Role of the legislature and government of New Brunswick.
17.
(1) Proceedings of Parliament.
(2) Proceedings of New Brunswick legislature.
18.
(1) Parliamentary statutes and records.
(2) New Brunswick statutes and records.
19.
(1) Proceedings in courts established by Parliament.
(2) Proceedings in New Brunswick courts.
20.
(1) Communications by public with federal institutions.
(2) Communications by public with New Brunswick institutions.
21. Continuation of existing constitutional provisions.
22. Rights and privileges preserved.
MINORITY LANGUAGE EDUCATIONAL RIGHTS
23.
(1) Language of instruction.
(2) Continuity of language instruction.
(3) Application where numbers warrant.
ENFORCEMENT
24.
(1) Enforcement of guaranteed rights and freedoms.
(2) Exclusion of evidence bringing administration of justice into disrepute.
GENERAL
25. Aboriginal rights and freedoms not affected by Charter.
26. Other rights and freedoms not affected by Charter.
27. Multicultural heritage.
28. Rights guaranteed equally to both sexes.
29. Rights respecting certain schools preserved.
30. Application to territories and territorial authorities.
31. Legislative powers not extended.
APPLICATION OF CHARTER
32.
(1) Application of Charter.
(2) Exception.
33.
(1) Exception where express declaration.
(2) Operation of exception.
(3) Five year limitation.
(4) Re-enactment.
(5) Five year limitation.
CITATION
34. Citation.

Notes


I: Canadian Charter of Rights and Freedoms


Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:



Guarantee of Rights and Freedoms

Guarantee of Rights and Freedoms.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms: set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.


Fundamental Freedoms

Fundamental freedoms.
2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.


Democratic Rights

Democratic rights of citizens.
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
Maximum duration of legislative bodies.
4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members.[1]
Continuation in special circumstances.
(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.[2]
Annual sitting of legislative bodies.
5. There shall be a sitting of Parliament and of each legislature at least once every twelve months.[3]


Mobility Rights

Mobility of citizens.
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
Rights to move and gain livelihood.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
a) to move to and take up residence in any province; and
b) to pursue the gaining of a livelihood in any province.
Limitation.
(3) The rights specified in subsection (2) are subject to
a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
Affirmative action programs.
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.


Legal Rights

Life, liberty and security of person.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Search or seizure.
8. Everyone has the right to be secure against unreasonable search or seizure.
Detention or imprisonment.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
Arrest or detention.
10. Everyone has the right on arrest or detention
a) to be informed promptly of the reasons therefor;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Proceedings in criminal and penal matters.
11. Any person charged with an offence has the right
a) to be informed without unreasonable delay of the specific offence;
b) to be tried within a reasonable time;
c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
e) not to be denied reasonable bail without just cause;
f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
Treatment or punishment.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
Self-crimination.
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
Interpreter.
14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.


Equality Rights

Equality before and under law and equal protection and benefit of law.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Affirmative action programs.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.[4]


Official Languages of Canada

Official languages of Canada.
16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
Official languages of New Brunswick.
(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.
Advancement of status and use.
(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.
English and French linguistic communities in New Brunswick.
16.1 (1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.
Role of the legislature and government of New Brunswick.
(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.[5]
Proceedings of Parliament.
17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.[6]
Proceedings of New Brunswick legislature.
(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.[7]
Parliamentary statutes and records.
18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.[8]
New Brunswick statutes and records.
(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.[9]
Proceedings in courts established by Parliament.
19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.[10]
Proceedings in New Brunswick courts.
(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.[11]
Communications by public with federal institutions.
20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where
a) there is a significant demand for communications with and services from that office in such language; or
b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.
Communications by public with New Brunswick institutions.
(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.
Continuation of existing constitutional provisions.
21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.[12]
Rights and privileges preserved.
22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.


Minority Language Educational Rights

Language of instruction.
23. (1) Citizens of Canada
a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or
b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language

of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province.[13]

Continuity of language instruction.
(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.
Application where numbers warrant.
23. (3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province
a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and
b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.


Enforcement

Enforcement of guaranteed rights and freedoms.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Exclusion of evidence bringing administration of justice into disrepute.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.


General

Aboriginal rights and freedoms not affected by Charter.
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.[14]
Other rights and freedoms not affected by Charter.
26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.
Multicultural heritage.
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
Rights guaranteed equally to both sexes.
28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
Rights respecting certain schools preserved.
29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.[15]
Application to territories and territorial authorities.
30. A reference in this Charter to a Province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.
Legislative powers not extended.
31. Nothing in this Charter extends the legislative powers of any body or authority.


Application of Charter

Application of Charter.
32. (1) This Charter applies
a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
Exception.
(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.
Exception where express declaration.
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
Operation of exception.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
Five year limitation.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
Re-enactment.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
Five year limitation.
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).


Citation

Citation.
34. This Part may be cited as the Canadian Charter of Rights and Freedoms.

Notes

  1. See section 50 and the footnotes to sections 85 and 88 of the Constitution Act, 1867.
  2. Replaces part of Class 1 of section 91 of the Constitution Act, 1867, which was repealed as set out in subitem 1(3) of the Schedule to this Act.
  3. See the footnotes to sections 20, 86 and 88 of the Constitution Act, 1867.
  4. Subsection 32(2) provides that section 15 shall not have effect until three years after section 32 comes into force.

    Section 32 came into force on April 17, 1982; therefore, section 15 had effect on April 17, 1985.
  5. Section 16.1 was added by the Constitution Amendment, 1993 (New Brunswick). See SI/93-54.
  6. See section 133 of the Constitution Act, 1867, and the footnote thereto.
  7. Id.
  8. Id.
  9. Id.
  10. Id.
  11. Id.
  12. See, for example, section 133 of the Constitution Act, 1867, and the reference to the Manitoba Act, 1870, in the footnote thereto.
  13. Paragraph 23(1)(a) is not in force in respect of Quebec. See section 59 infra.
  14. Paragraph 25(b) was repealed and re-enacted by the Constitution Amendment Proclamation, 1983. See SI/84-102.

    Paragraph 25(b) as originally enacted read as follows:

    (b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.
  15. See section 93 of the Constitution Act, 1867, and the footnote thereto.
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