Before the Charter came into being, rights and freedoms were protected in Canada by a variety of laws, including the 1960 Bill of Rights. Although important, none of these laws were part of the Constitution and therefore lacked the supremacy and permanence of the Charter. The Bill of Rights also only applied to federal, rather than provincial laws.
A Difficult Beginning
In the early 1980s, as the government of Pierre Elliott Trudeau began the process of patriating Canada’s Constitution — taking it out of the hands of the British Parliament — the government also decided to include within the Constitution a new Charter of Rights and Freedoms. Along with the wider constitutional debates that then dominated politics for much of 1981 and 1982, there were specific concerns about the Charter: would it give courts and judges too much power to interpret its meaning, and how would it be amended once it was in place? There were also deep reservations among provincial leaders that a Charter would restrict the right of provinces to independently make laws as they saw fit (see Distribution of Powers).
The hard work of negotiating and crafting the Charter fell to Trudeau’s justice minister Jean Chrétien (later prime minister), who was helped in this task by two provincial attorneys-general, Roy Romanow of Saskatchewan (later premier) and Roy McMurtry of Ontario. Ontario Premier Bill Davis was also instrumental in bringing the Charter to life (see Patriation of the Constitution).
Québec Premier René Lévesque, however, was less concerned with the Charter. In 1975, Québec had enacted its own Charter of Human Rights and Freedoms, which took precedence over other laws in the province (but was not enshrined in the Canadian Constitution). Lévesque was initially a fierce opponent of any new constitutional arrangement, particularly one that did not honour Québec’s traditional constitutional veto. But he agreed to surrender the veto when he entered into an alliance with the other provincial premiers (see Gang of Eight), in exchange for a constitutional agreement that prioritized provincial rights over what he called a “rigid, even in some ways authoritarian conception of federalism.”
When the other premiers of the Gang of Eight agreed to the new proposal spearheaded by Chrétien and Romanow (see Kitchen Accord), they chose not to seek Lévesque’s approval because, in Romanow’s estimation, “What the province of Quebec would have done is requested additional amendments or changes, in my judgment, that would have either obfuscated or delayed and thereby killed the process.”
Lévesque and his lieutenants objected vehemently to the manner in which the constitutional deal was negotiated in his absence — an event that became known in Québec nationalist circles as the “night of the long knives.” “What they did this morning is beyond description,” Lévesque said. “Maybe second thoughts and further events will make them understand that this could have incalculable consequences.” As a result, the Québec government has never signed the 1982 Constitution or formally endorsed the Canadian Charter. However, the Constitution was determined by the Supreme Court to be legally binding without any of the provinces’ approval, and therefore all Quebec laws must respect the Canadian Charter, as well as the Quebec Charter, to be considered constitutional.
In the end, a majority of provinces agreed to support the Charter on the condition that it contain a clause allowing Parliament or any provincial legislature to exempt their laws from certain sections in the Charter (on fundamental rights, equality rights and legal rights), for a period of five years. The “notwithstanding clause,” as Section 33 of the Charter is known, has been used only a handful of times by various provinces to violate Charter rights, most notably by Québec to create laws limiting the use of English-language signage (see Bill 101, Bill 178, Bill 86), and by Alberta against the issue of same-sex marriage. Although the clause is available to governments, its use is politically difficult and therefore rare.
The provinces and Ottawa also settled on an amending formula for the Charter. Any changes require the agreement of Parliament plus the legislatures of seven provinces representing at least 50 per cent of Canada’s population. The Charter has been amended twice since its enactment.
After many months of passionate public debate, the Charter took effect as part of the Constitution Act, 1982 when Queen Elizabeth II signed the governing legislation, the Canada Act, 1982, into law on 17 April that year in Ottawa.
What the Charter Says
The Charter protects Canadians against the state, and protects minorities against parliamentary majorities. It applies to anyone in Canada, citizen or newcomer, although some of its rights apply only to citizens, including the right to vote and the right to enter and leave the country. Its language is more general than specific, which is one reason why critics fear it gives too much interpretive power to judges.
The principal rights and freedoms it covers include freedom of expression, the right to a democratic government, the right to live and seek work anywhere in Canada, the legal rights of people accused of crimes, the rights of Indigenous peoples, the right to equality including gender equality, the right to use Canada’s official languages, and the right of French or English minorities to an education in their language.
In Section 1, the Charter also gives governments the power to limit rights and freedoms, as long as those limits can be “demonstrably justified in a free and democratic society.” There have been numerous cases of the courts upholding such limits, such as the 1992 Butler case, in which the Supreme Court of Canada said a law dealing with pornography was a reasonable restriction on the right of free expression, because it protected society from harm in other ways.
Section 33, the “notwithstanding” clause, also allows governments to exempt their laws from certain sections of the Charter, but not from democratic, mobility or language rights.
A Legal and Social Revolution
The Skapinker case of May 1984, which dealt with mobility rights, was the first Charter case to come before the Supreme Court since the Charter’s creation. In its ruling, the court declared unanimously that the Charter “is a part of the Constitution of a nation… part of the fabric of Canadian law… the supreme law of Canada.”
Since that time, the Charter has been applied in thousands of court rulings across the country. Constitutional law scholar Peter Hogg has said that the Charter’s influence occurs not only through the courts, but invisibly behind the scenes, guiding the work of government lawyers and officials in designing laws and policies that are Charter-compliant.
Although the Charter’s impact is broad, in its first three decades (1982–2012) it revolutionized a number of specific aspects of Canadian life, including the work of police and prosecutors. The Charter significantly strengthened the rights of criminal defendants, tightening the rules around telephone wiretaps, protecting accused people from having to disprove presumptions of guilt (1986 Supreme Court Oakes case) and requiring full disclosure of relevant evidence between the Crown and defence (1991 Supreme Court Stinchcombe case) — although this in turn has increased the costs and created huge delays in the administration of criminal justice.
The Charter’s Section 7 guarantee of personal liberty led the Supreme Court to strike down the Criminal Code provision against abortion in 1988, transforming women’s reproductive rights (see Henry Morgentaler).
The Charter’s Section 15 anti-discrimination clause led to a series of rulings that changed the legal landscape for gays and lesbians, including the Supreme Court’s 1998 Vriend decision, which banned discrimination on the basis of sexual orientation (see LGBTQ2S Rights in Canada). That paved the way for the 2005 legalization of same-sex marriage.
Section 23 on minority language education rights transformed schooling for francophones outside Québec, giving rise to a generation of children, called “Section 23 kids,” educated in French language schools where population numbers warrant (see Canadian Parents for French).
Section 25 says the Charter cannot be used to undermine Indigenous or treaty rights. Although such rights don’t specifically fall under the Charter (they are covered by Section 35 of the Constitution Act, 1982) their interpretation and expansion by the courts was profoundly influenced by the Charter. A prime example was the Supreme Court’s 1990 Sparrow decision, which strengthened Indigenous fishing and natural resource rights. Sparrow and similar case law has made consultation of Indigenous communities a necessity almost anywhere resource development is contemplated in Canada.
Judicial Activism Debate
The Charter has elevated the role of the courts by allowing judges to make sweeping social and legal changes through their interpretation of the Charter’s meaning. Critics say this has diminished the supremacy of elected bodies such as Parliament and the legislatures, by giving courts the power to dismiss their decisions. Others argue the Charter has initiated a “dialogue” between Parliament and the courts, with judges striking down laws where necessary, allowing Parliament and legislatures to rewrite those laws in ways that are compliant with the Charter.
Others have accused judges of being social activists by “reading in” rights and freedoms into the Charter that aren’t specified in the document. In his book Friends of the Court, political scientist Ian Brodie (a former chief of staff to Prime Minister Stephen Harper) says the Charter has also inspired “business groups, unions, native groups, language minorities, gay and lesbian groups and others” to import American-style public-interest litigation techniques into Canada, pursuing policy-making through the courts rather than through the political system.
“Judges are not Don Quixotes, sort of charging off and expanding the role of interpretation to nullify parliamentary legislation or provincial legislation,” he said. “Judges take that job very, very seriously. But the Charter is written in very general language, which some people will criticize because it gives too much leeway to the interpretive function of the courts. But I believe it’s necessary. I don’t know of any constitution… which doesn’t have this general language. So the judges have to, and the lawyers have to, and the governments have to interpret that legislation… I don’t regret what my colleagues and I have done as judges.”
A Global Model?
The Charter, thought by some to be moving Canada constitutionally towards the example of the United States, may in fact offer a distinctive alternative for other nations to emulate. A June 2012 study published in the New York University Law Review, said the Charter offers a model — widely admired in the English-speaking Commonwealth — of how to balance competing legal interests in a modern, multicultural society. It said the tools for such balancing are found in three important sections:
Section 1, which says rights are not absolute and can be limited by government as long as there is compelling evidence for doing so; Section 15, which doesn’t define equality rights, but leaves them open-ended, allowing new groups, such as gays and lesbians, to be brought under its protection through the passage of time; and Section 33, which says governments may sometimes ignore judges’ decisions that strike down their laws, as long as they are willing to spend the political capital. These sections are key features of a constitution that encourages a dialogue between legislatures and the courts — a practice that is becoming the norm in many democracies.
The Charter has proven over the years to be popular even in Québec, despite its lack of official ratification by the Québec government. A 2002 study by the Montréal-based Centre for Research and Information on Canada found that the Charter of Rights and Freedoms “is viewed favourably” in all regions of the country — with the highest rates of approval (91 per cent) in Québec. In 2011, a survey of 1,000 Québecers by the CROP polling organization found that 88 per cent of respondents supported the Charter.
“Canada,” wrote US law professors David Law and Mila Versteeg in the 2012 study, “is a constitutional trend-setter among common-law countries.”