Canadian Charter of Rights and Freedoms

fr:Charte canadienne des droits et libertés pl:Kanadyjska Karta Praw i Swobód Template:Canadian politics The Canadian Charter of Rights and Freedoms is a constitutionally entrenched bill of rights which forms part of the Constitution of Canada adopted in 1982. Its purpose is to protect rights of Canadian citizens from actions and policies of all levels of government. Its precursor, The Canadian Bill of Rights, 1960, introduced by the Diefenbaker government, had a far more limited scope and was easily amendable. The Charter developed out of the United Nations human rights and freedoms movement as enunciated in the Universal Declaration of Human Rights, a document first drafted by a Canadian legal scholar, Professor John Peters Humphrey.

Features of the Charter

All people enjoy the fundamental freedom of religion, freedom of thought, freedom of expression and freedom of the press, peaceful assembly, and freedom of association subject to the reasonable limitations clause (section 1) and the notwithstanding clause.

Under the Charter, all individuals enjoy the following rights:

equality rights: equal treatment before and under the law, and equal protection and benefit of the law without discrimination

democratic rights: the right to participate in political activities, to vote and to be elected to political office and similar rights

legal rights: the right to be presumed innocent until proven guilty, the right to retain a lawyer and to be informed of that right, and the right to an interpreter in a court proceeding are examples

mobility rights: the right to enter and leave Canada, and to move to and take up residence in any province or to reside outside Canada

language rights: generally, the right to use either the English or French languages in communications with Canada's federal government and certain of Canada's provincial governments

minority language education rights: generally, French and English minorities in every province and territory have the right to be educated in their own language

A section of the Charter known as the notwithstanding clause provides a particularly unique feature. Through this clause some guarantees can be overridden through a legislative enactment, though such an override must be reauthorized every five years due to a sunset clause. The use of the notwithstanding clause is speculated to be politically costly, and has never been invoked by the Canadian federal government. However, there is currently a Canadian movement calling for the use of the notwithstanding clause to outlaw same-sex marriage. The notwithstanding clause has been invoked repeatedly by the province of Quebec, which has never ratified the Charter but is subject to it nonetheless. The provinces of Saskatchewan and Alberta have also invoked the notwithstanding clause, to protect back-to-work legislation and an exclusively heterosexual definition of marriage, respectively. The Yukon Territory included a notwithstanding clause in a statute which never came into force, and Alberta also abandoned an attempt to use the notwithstanding clause to limit lawsuits against the government for past forced sterilizations.

Contents of the Charter

Guarantee of Rights and Freedoms

1: guarantees of rights, limitations

Fundamental Freedoms

2: fundamental freedoms

Democratic Rights

3: right to vote and serve as member of a legislature
4: maximum duration of legislature
5: annual sitting required

Mobility Rights

6: mobility rights

Legal Rights

7: life, liberty, and security of the person
8: unreasonable search and seizure prohibited
9: arbitrary detention prohibited
10: rights on arrest or detention
11: rights in criminal and penal matters
12: cruel and unusual punishment prohibited
13: right not to incriminate oneself
14: right to an interpreter

Equality Rights

15: equality rights

Official Languages of Canada

16: English and French as official languages of Canada and New Brunswick
17: right to use either official language in Parliament and the NB legislature
18: statutes and proceedings of Parliament and the NB legislature to be printed in both official languages
19: both official languages may be used in federal and NB courts
20: right to communicate with and be served by the federal and NB governments in either official language
21: existing constitutional provisions continued
22: existing rights to use other languages not affected

Minority Language Education Rights

23: right of English- or French-speaking minorities in a province to receive instruction in their language

Enforcement

24: enforcement of Charter rights

General

25: does not derogate existing Aboriginal rights and freedoms
26: other rights and freedoms in Canada not affected
27: Charter to be interpreted in a multicultural context
28: all Charter rights guaranteed equally to men and women
29: rights of religious schools preserved
30: references to provinces include territories
31: Charter does not extend the rights of legislatures

Application of Charter

32: application of the Charter
33: Parliament or a legislature may pass a law notwithstanding certain sections of the Charter (the "Notwithstanding Clause")

Citation

34: citation ("Canadian Charter of Rights and Freedoms")

History of the Charter

The inclusion of a charter of rights in the constitution was a much debated issue. Prime Minister Pierre Trudeau very much wanted it but many of the provincial leaders did not. Trudeau thus was forced to include the notwithstanding clause to allow provinces to opt out of certain areas of the charter. Pressure from the left in the country, especially the New Democratic Party, prevented Trudeau from including any rights protecting private property.

Before the Charter came into effect, other Canadian laws and legal precedents protected many of the rights and freedoms that are protected under the Charter. These were sometimes known as the Implied Bill of Rights. The Canadian Bill of Rights, which the Canadian Parliament enacted in 1960 had many of these rights, but it was only applicable to the federal government as, unlike the Charter, it was not part of the Constitution of Canada. It was also a simple act of Parliament rather than a constitutional amendment, and thus did not empower the courts to review and strike down contrary laws.

While the Charter was adopted in 1982, it was not until three years later in 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.

Comparison with other human rights instruments

Some Members of Parliament saw the movement to entrench a charter as contrary to the British model of Parliamentary supremacy. Ironically, some 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 when it was adopted in 1982.

It is no accident that the Canadian Charter is similar to the European Convention on Human Rights (ECHR), specifically in relation to the limitations clauses contained the European Convention. The underlying reason for this fundamental similarity between the ECHR and the Charter lies in the fact that the Canadian Charter and the European Convention are both inspired by the Universal Declaration of Human Rights. It is because of this similarity with European Human Rights law that the Supreme Court of Canada turns not only to the Constitution of the United States case law but also the European Court of Human Rights cases in interpreting the Charter.

The Charter limitations clause states:

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.

This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as hate speech and obscenity. It has also been used to protect the unreasonable interference of government in the lives of people in a free and democratic society by defining these limits.

Regarding similarities with the ECHR there are various limitations in the European Convention that are similar to the limitations clause in the Charter. These limits include:

limits on public trial rights that have also been recognized by the Canadian courts (art. 6(1) ECHR);
limits on privacy rights as are accepted as in Canada (Article 8(2) ECHR: except such as is in accordance with the law and is necessary in a democratic society);
limits on freedom of thought and religion similar to Canadian limitations(art. 9(2) ECHR: subject only to such limitations as are prescribed by law and are necessary in a democratic society);
limits on freedom of expression are accepted as in Canada (art. 9(2) ECHR: subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society);
limits on freedom of peaceable assembly and free association are accepted in Canada as well (art. 11(2) ECHR: No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society).

However, unlike the Canadian Charter art. 18 of the European Convention limits all these specifically enumerated restrictions: The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed. Perhaps the Canadian Charter's single overriding limitation upon all of the enumerated rights is much more general limitation than the specific limitations in the European Convention. This general limitations clause definitely makes the Canadian Charter distinct from its American counterpart.

Reasonable limits and important cases

The most prominent standard used to define a reasonable limit was developed by the late Chief Justice Brian Dickson. In R. v. Big M Drug Mart Ltd. (1985), Dickson asserted that limitations on rights must be motivated by an objective of sufficient importance. Moreover, the right must be limited to the smallest possible extent. In R. v. Oakes (1986), Dickson elaborated with a four-step test.

1. The limitation must have a sufficient objective. In practice, judges recognize almost any given objective as sufficient, with the usual exception of objectives which are in and of themselves discriminatory or antagonistic to fundamental freedoms. In Vriend v. Alberta (1998), the Supreme Court found an Alberta law unconstitutional because it extended no protection to employees terminated due to sexual orientation, contradicting section 15. The government had chosen not to protect people in this predicament because the predicament was considered rare. The Court ruled this was an insufficient objective, because it was more of an explanation than an objective.

2. The limitation must be rationally connected to the objective. Professor Peter Hogg, who used to argue the rational connection test was redundant, continues to argue the criterion is of little use. Nevertheless, in R. v. Morgentaler (1988), Dickson struck down laws against abortion because of a breach of health rights under section 7 and an irrational connection between the objective (protecting the fetus and the pregnant woman's health), and the process by which therapeutic abortions were granted. This process was considered unfair to pregnant women requiring therapeutic abortions, because committees meant to approve abortions were not formed or took too long.

3. The limitation must be to the smallest possible extent. Professor Hogg believes this to be the most crucial criterion of the Oakes test. In Ford v. Quebec (A.G.) (1988), it was found that Quebec laws requiring the exclusive use of French on signs limited free speech. While the law had a sufficient objective of protecting the French language, it was nevertheless unconstitutional because the legislature could have accepted a more benign alternative such as signs including smaller English words in addition to larger French words.

4. There must be a balance between the limitation of the right and the benefits caused by limiting it. However, Professor Hogg has argued that merely satisfying the first three criteria of the Oakes test probably amounts to automatic satisfaction of the fourth criterion.

Oakes has probably been cited in every Charter case since 1986 in which it was found a right has been breached. Irwin Toy (1989) is an example of a case in which a right was violated, but the law was nevertheless constitutional, in as much as Oakes was satisfied. The Oakes test takes its name from David Oakes, who was accused of selling narcotics. In 1986, Dickson and a unanimous Court found that David Oakes' rights had been violated because he had been presumed guilty. This violation was not justified under the Oakes test because of a failure to satisfy the rational connection criterion.

Bibliography

Hogg, P. W., Constitutional law of Canada 4th ed. (Carswell: Scarborough) with Supplement to Constitutional Law of Canada (2002-)
Humphrey, J.P., Human Rights and the United Nations: A Great Adventure (New York: Transnational Publishers, 1984)
Beaudoin G.-A. & E. Ratushny, The Canadian Charter of Rights and Freedoms 2nd ed. (Carswell, Toronto, 1989)
Magnet, J. E., Constitutional Law 8th ed.(2001)

External links

Canadian Charter of Rights and Freedoms (http://canada.justice.gc.ca/Loireg/charte/const_en.html) - at Department of Justice Website
Canadian Bill of Rights, 1960 (http://laws.justice.gc.ca/en/c-12.3/text.html)
Constitutional Law of Canada (http://www.constitutional-law.net/general.html) by Professor Joseph E. Magnet, University of Ottawa

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