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 guarantees 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.
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, it 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. 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.
Features 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,
History 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.
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.
Public interest groups frequently
intervene in cases to make arguments on how to interpret the
Charter. Some examples are the
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.
Interpretation and enforcement 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 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
European Convention partly because they were inspired by the similar
Canadian Charter.
Comparisons with other human rights instruments 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."
The Charter and national values 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,
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