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The Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms is a central element of the Canadian Constitution and has a major impact on the relationship between Canadians and their governments. The purpose of this article is to provide an introduction to the content, application, and enforcement of Charter rights, as well as to explain the role of the courts in determining the precise nature and scope of Charter rights.

What are Charter Rights?

Rights in Canada’s legal and constitutional context

Overview of Canada’s Charter of Rights and Freedoms

Diverse set of constitutional rights and freedoms

Application & Enforcement of Charter Rights

Other key Charter provisions

Judicial Interpretation of Charter Rights

Defining the nature and scope of Charter rights

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What are Charter Rights?

Rights in Canada’s legal and constitutional context

The Charter as a Rights Document

The Charter provides Canadian citizens and residents with a broad set of constitutional rights. This, however, raises an important question: what exactly are rights? Answers to this are often very complex, and depend greatly on the context in which specific rights are recognized and exercised. Nevertheless, an introduction to the basic nature of rights can be provided by discussing a very simple example – everyday promises. While we often do not think of promises as being analogous to constitutional rights, their basic nature is very much the same.

Two key things occur when one makes a promise. On the one hand, a duty or obligation is created. When one makes a promise, s/he is obligated to fulfill that promise. On the other hand, an entitlement is also created. When one makes a promise to another, the other person is entitled to claim performance of that promise. This becomes clearer when considering an example, such as the promise to help a friend paint her house. By making that promise you have created a duty or obligation for yourself; when the time comes, you are obligated to help your friend paint. Moreover, your friend has gained an important entitlement; when she goes to paint the house, she is entitled to demand your assistance.

What exactly does all this have to do with constitutional rights? We can view Charter rights as promises made by the state to its citizens. Take, for example, the Section 2(b) Charter right to freedom of expression. This right represents a promise by the state not to interfere with a person’s expressive activities. Moreover, like promises, this right involves important duties and entitlements. On the one hand, the state has the duty not to interfere with a person’s expression. On the other hand, individuals have the entitlement to claim non-interference from the state.

Each right under the Canadian Charter of Rights and Freedoms offers a different promise with its own unique set of duties and entitlements.

See the Overview of Charter Rights and Freedoms section of this article for more information on specific rights provided for by the Charter.

Charter Rights and Canada’s Legal System

In everyday life we know promises are often not kept. When the time comes to help your friend paint the house, you might break your promise by saying you are busy, or, by simply not showing up. Unfortunately, for your friend, there really isn’t anything that she can do to force you to keep your promise. She may attempt to use guilt or threaten to end your friendship, but, at the end of the day, she really has no formal power to ensure the promise is fulfilled.

Charter rights, by contrast, have a stronger element of security attached to them. This is because they are legal rights; they are rights recognized under Canada’s legal system and enforced by Canadian courts. As such, Canadians have the opportunity to take the state to court whenever they feel their Charter rights have been violated. Moreover, the courts have the power to enforce those rights – and to force the state to perform its Charter duties.

See the Judicial Interpretation of Charter Rights section of this article for more on the role of the courts in adjudicating and enforcing Charter rights.

This, however, is not to suggest that Charter rights can never be violated. The Charter itself provides several legal avenues for the state to break its promises. Under Section 1 of the Charter, for example, the state may limit a Charter right if it can show good cause or reason. Under Section 33 of the Charter, governments may also pass laws that are exempt from certain Charter rights.

See the Overview of Charter Rights and Freedoms section of this article for more information on Section 1 of the Charter. See the Application and Enforcement of Charter Rights section of this article for more information on Section 33 of the Charter.

Charter Rights & the Canadian Constitution

Finally, the Charter is part of the Canadian Constitution. This means Charter rights have a very special status in Canada’s legal and political traditions. Firstly, the Charter (as well as all other constitutional documents and conventions) is recognized as the supreme law in Canada. As a result, all other laws must conform to the constitutional rights and duties provided for in the Charter. Whenever there is a conflict with another law, the Charter always takes precedence; it is usually the case the other law is declared void and subsequently repealed.

Secondly, the constitutional status of the Charter means its rights and freedoms can only be changed under very specific circumstances. Governments can change regular laws whenever they like by simply introducing new legislation that repeals, amends, or replaces the old law. However, they cannot do this in the context of constitutional laws such as the Charter. Instead, governments must enact a formal constitutional amendment to make any such changes. In the case of the Charter, this would require the consent of the federal Parliament (the Monarch, House of Commons, and Senate) plus two-thirds of the provincial legislatures (which combined represent at least 50 percent of the national population). While such an amendment is technically possible, it is, in practice, a very difficult thing to achieve, making Charter rights even more secure than other legal rights found in regular federal and provincial legislation.

For more information on the Charter and the Canadian Constitution: The Canadian Constitution: Introduction to Canada’s Constitutional Framework

Overview of Charter Rights and Freedoms

Diverse set of constitutional rights and freedoms

The Charter provides Canadians with a diverse set of constitutional rights and freedoms, ranging from fundamental freedoms, to democratic and legal rights, to equality rights, to language rights. The following section offers a brief introduction to each of these Charter rights.

Reasonable Limits Clause

Before describing specific Charter rights and freedoms, it is important to note a key clause found at the beginning of the document. Section 1 states Charter rights are subject only to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” What exactly does this mean? Firstly, Section 1 recognizes that Charter rights and freedoms are not absolute; they are not guaranteed to such an extent that they may never be violated or limited. Section 1, instead, states that these rights and freedoms may be limited under certain circumstances.

Under what circumstances may Charter rights and freedoms be violated? Section 1 asserts that any legitimate limitation must be prescribed by law, meaning it must be written in either legislation or regulation. The section also states that any limitation must be demonstrably justifiable in a free and democratic society. This means, among other things, that the state must provide good cause or reason for violating a Charter right. The state cannot violate a right for no reason, or on grounds the courts find to be insufficient.

Since the enactment of the Charter in 1982, the courts have provided further clarification of Section 1. In particular, they have developed an important legal test for assessing whether or not the state has provided appropriate justifications for limiting a Charter right. This legal test is commonly referred to as the Oakes test, and is named after the case in which it was first recognized: R. v. Oakes.

For judicial interpretations of Section 1 of the Charter and the Oakes test: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Guarantee of Rights and Freedoms” section)

Fundamental Freedoms

Within the basic framework laid out in Section 1, the Charter then goes on to provide for a diverse set of basic rights and freedoms. The first of these are referred to as “fundamental freedoms,” and are found under Section 2 of the Charter.

They include:

  • Freedom of conscience and religion;
  • Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of expression;
  • Freedom of peaceful assembly; and,
  • Freedom of association.

Generally speaking, these freedoms have been interpreted by the courts as liberty rights. In other words, they involve the right of persons to be free from state interference when engaging in the listed activities. In the case of freedom of expression, for example, persons are to be free from state interference (such as legal prohibitions) when communicating their thoughts and beliefs to other persons.

For judicial interpretations of the fundamental freedoms: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Fundamental freedoms” section)

Democratic Rights

Sections 3-5 of the Charter provide several rights related to Canada’s democratic system. These can be further divided into two types: the first concerns democratic participation, and gives every citizen the right to vote in federal, provincial, or territorial elections, as well as the right to run as a candidate for political office. These rights help ensure that, among other things, the state cannot exclude certain individuals or groups from taking part in the democratic process.

The second type of democratic rights relate to the operation of federal, provincial, and territorial legislatures. Section 4 of the Charter, for example, states that no House of Commons or provincial assembly can continue to sit for longer than five years (after which time a general election must be held). The section does, however, allow for longer periods under extraordinary circumstances, such as war or national emergency. Section 5 of the Charter further states that Parliament and provincial assemblies must sit at least once a year. This helps ensure that elected representatives and the public have a chance to question government actions on a regular basis.

For judicial interpretations of the democratic rights: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Democratic rights” section)

Mobility Rights

Section 6 of the Charter provides citizens (and, in some cases, permanent residents) with a set of mobility rights.

These include the right to:

  • Enter, remain in, and leave, Canada;
  • Move to, and take up residence in, any province; and,
  • Pursue the gaining of a livelihood in any province.

Generally speaking, these rights help ensure that persons are free to come and go as they please, be it to enter or leave the country, or move from one area to another. The section also helps ensure that citizens are free to seek employment or business opportunities in all parts of Canada. The section does, however, allow the provinces to undertake some policies that may be considered detrimental to mobility, such as providing social benefits only to persons who have lived in the province or territory for a certain amount of time, passing employment laws requiring workers to meet certain qualifications before practicing their profession or trade, and creating employment programs that favour its own residents when the province has an employment rate that is below the national average.

For judicial interpretations of the mobility rights: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Mobility rights” section)

Legal Rights

Sections 7 through 14 provide persons with a broad set of legal rights – rights relating to Canada’s justice system.

These include 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;
  • Be secure against unreasonable search or seizure;
  • Not to be arbitrarily detained or imprisoned;
  • On arrest or detention to be (a) informed promptly of the reasons therefore, (b) retain and instruct counsel without delay and to be informed of that right, and (c) have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful;
  • Several rights relating to being charged with an offence (such as the right to be informed of the specific offence, tried in a reasonable time, presumed innocent until proven guilty, to name a few);
  • Not to be subjected to any cruel and unusual treatment or punishment;
  • Not to have any incriminating evidence given by a witness to be used to incriminate that witness (except in a prosecution for perjury or for the giving of contradictory evidence); and,
  • The assistance of an interpreter for parties or witnesses who do not understand or speak the language the proceedings are conducted in, or who is deaf.

For judicial interpretations of the legal rights: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Legal rights” section)

Equality Rights

Section 15 of the Charter provides persons with several key equality rights. More specifically, this section states that 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 (in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability). This section helps ensure every individual is considered equal under Canadian law and that governments don’t discriminate against certain groups in its policies and programs. Over the years, the courts have extended the section to include other grounds of discrimination, such as sexual orientation.

It is also important to note that section 15 explicitly states it does not preclude any government law or program aimed at improving the status of a disadvantaged group (for example, an affirmative action program established to increase employment opportunities for women or minorities). This clarification is important in that it eliminates constitutional challenges to such programs on the grounds they discriminate against non-disadvantaged groups (such as white males).

For judicial interpretations of the equality rights: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Equality rights” section)

Official Languages Rights

Sections 16 through 22 deal with rights relating to Canada’s two official languages. Section 16 confirms that English and French are Canada’s official languages, and that both enjoy equal status, in terms of their use within, and by, all federal institutions. The section also recognizes the Province of New Brunswick as officially bilingual –that both language communities have equal rights in the province, and that the Government of New Brunswick has the duty to protect and promote those rights.

Sections 17-20 proceed to provide more specific official language rights:

  • Everyone has the right to use English or French in any debates or other proceedings of Parliament;
  • Everyone has the right to use English or French in any debates or other proceedings of the legislature of New Brunswick;
  • The statutes, records, and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative;
  • 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;
  • 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;
  • 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;
  • Any member of the Canadian public 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,
  • 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.

Sections 21 and 22 place some qualifications on the official language rights provided under sections 16 to 20. Section 21 states that the Charter’s official language rights are not to take away from any of the other language rights that existed previously under other parts of the Canadian Constitution, such as the right of persons in Quebec and Manitoba to use either English or French in their provincial legislatures and courts. Further, Section 22 helps ensure that the Charter rights to use English and French do not create limits on rights to use other languages that may exist under federal or provincial law.

For judicial interpretations of the official languages rights: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Official language rights” section)

Minority Language Education Rights

Section 23 of the Charter deals with minority language education rights.

This section requires provincial governments to provide education to Canadians in the official language of their choice, even when only a minority speaks a given language. In English-dominated areas, this means that French-speaking minorities have the right to educate their children in French (and vice versa for English minorities in French-dominated areas). The section does, however, provide some important qualifications:

  • In order to claim the minority language education rights for their children, in most cases parents must have the minority language as their first language, or have received their own primary education in the minority language, or have a child who has received, or is receiving, his or her education in the minority language;
  • In Quebec, the minority language education rights do not apply until permitted by the provincial legislative assembly or government of Quebec; and,
  • In order for parents to claim these minority language education rights, there must be a sufficient number of eligible children in their area to justify providing schooling in the minority language.

For judicial interpretations of the minority language education rights: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see “Minority language education rights” section)

Application & Enforcement of Charter Rights

Other key Charter provisions

The previous section offered an overview of the specific rights and freedoms provided for by the Charter. This section examines other key Charter provisions which deal with the document’s application and enforcement.

Application of the Charter

Section 32 states that the Charter only applies to governments, and, as a result, not directly to private individuals, businesses, or other organizations. In other words, under the Charter, only federal and provincial governments (and, in turn, territorial and local governments) are legally obligated to respect its constitutional rights and freedoms.

This may seem a very narrow application for the Charter. Over the years, however, the courts have interpreted this section in a fairly broad manner. It is usually recognized the Charter applies not only to purely governmental actors and institutions (such as federal and provincial legislatures), but also to entities in which governments play a substantial role. This would include, for example, public schools and universities, public hospitals and other care facilities, Crown corporations, and so forth.

Moreover, the Charter applies to all governmental laws, which can, in some cases, have significant implications for non-governmental entities. For example, most provincial governments have human rights and labour codes, which govern important private relationships, such as between employees and private employers. As governmental laws, these codes must be consistent with the rights and freedoms provided for under the Charter.

For judicial interpretations of the Charter’s application clause: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Application of the Charter” section)

Enforcement Clause

What happens when a Charter right or freedom is violated? Section 24 states that anyone whose Charter rights have been limited or denied may apply to a court of competent jurisdiction to obtain a remedy. In other words, if an individual or group feels their Charter rights have been violated, they may take the violator (in most cases, the federal and/or provincial government) to court. It is then the job of the judicial branch of government to decide whether the Charter right has in fact been unconstitutionally denied and what course of action should be taken. Section 24 thus creates a very important role for the judiciary; it is the interpreter and adjudicator of citizens’ constitutional rights vis-à-vis the state.

For judicial interpretations of the Charter’s enforcement clause: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Enforcement” section).

See the Judicial Interpretation of Charter Rights section of this article for more information on the constitutional role of the courts under the Charter.

Notwithstanding Clause

The Charter does, however, provide the legislative branch with an important over-ride power. Section 33 of the Charter, commonly referred to as the notwithstanding clause, allows federal and/or provincial legislatures to pass laws that are exempt from certain Charter rights and freedoms (specifically, the fundamental freedoms, legal rights, and equality rights). This exemption does not extent to other Charter rights, such as the democratic rights, mobility rights, official language rights, or minority language education rights.

Section 33 does, however, place important restrictions on the manner in which the exemption may be used:

  • Parliament or a legislature must make an explicit declaration that a particular law is exempt from the Charter and must state specifically which sections of the Charter are not to apply.
  • An exemption from the Charter lasts a maximum of five years. After that time, Parliament or a legislature must make a new declaration to continue the exemption.

The general purpose of the section is to ensure the democratically elected Parliament and provincial legislatures, not the courts, have the final say regarding the Charter’s application to important issues of public policy. However, the section also requires a government that wishes to limit a Charter right to clearly state its purpose and, as a result, to accept the political consequences of its actions. As of January 2006, provincial legislatures have used Section 33 rarely. It has never been used by the federal government.

For judicial interpretations of the Charter’s notwithstanding clause: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Exemption where expressed declaration” section)

For general information on the Charter’s notwithstanding clause: re:politics (formerly, Maple Leaf Web): The Notwithstanding Clause

Other General Provisions

Finally, Sections 25 through 31 deal with general principles regarding the Charter’s application in relation to other key values, rights, and institutions in Canada.

  • Section 25 states that Charter rights and freedoms shall not interfere with any Aboriginal treaty rights or other rights and freedoms that pertain to the Aboriginal peoples of Canada.
  • Section 26 asserts that Charter rights and freedoms shall not interfere with any other rights and freedoms that may exist in Canada.
  • Section 27 states that the Charter shall be interpreted in a manner that is consistent with the preservation and enhancement of the multicultural heritage of Canadians.
  • Section 28 provides that Charter rights and freedoms are to be guaranteed equally to male and female persons.
  • Section 29 asserts that Charter rights and freedoms shall not interfere with any rights and privileges guaranteed under other parts of the Constitution regarding religious or denominational schools.
  • Section 30 states that the Charter applies to the territories exactly the same way that it applies to the provinces.
  • Section 31 states that nothing in the Charter extends the legislative powers of any body or authority, such as the sharing of responsibilities or the distribution of powers between the provinces and the federal government.

For judicial interpretation of the Charter’s general provisions: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest

Judicial Interpretation of Charter Rights

Defining the nature and scope of Charter rights

Much has already been said of the importance of the judiciary in relation to Charter rights. Under the Charter, the courts are tasked with the job of adjudicating and enforcing the Charter. This means that whenever individuals or groups feel their Charter rights have been violated by the state they may apply to the courts to hear their case. Moreover, the courts have the power to enforce Charter rights and ensure they are respected by the state.

Nature of Judicial Interpretation

More needs to be said, however, about the judiciary’s role as interpreters. The Charter itself is a short document with only very general statements about the nature of the rights and freedoms it provides. As such, Charter rights are often somewhat unclear or highly contestable regarding their precise meaning and application to real life situations. The courts are interpreters of the Charter in this sense; it is their responsibility to clarify these uncertainties in meaning and application. Moreover, in exercising this role, the courts have a significant impact on politics and public policy in Canada.

This point can be made clearer through use of an example. Under Section 2(b), the Charter states everyone has the right to, among other things, freedom of expression. This, however, raises many important interpretive questions when applying the right to real life. For example, what exactly does “expression” mean? Does it only include normal means of communication, such as verbal speech and communication through means of mass media, or does it also include things such as physical gestures? Moreover, what counts as a violation of freedom of expression? Do restrictions on the size or language of a billboard advertisement count as a restriction of expression? How about a law that limits speeches on public property to certain hours of the day?

The interpretive role of the courts becomes even more significant when examining Section 1 of the Charter. This section allows the state to violate Charter rights and freedoms when it provides good cause or reasons. It is the courts, however, that determine whether or not a reason given by the state is actually sufficient. For example, is protecting the dignity of women a sufficient reason for prohibiting certain forms of pornography? Is promoting equality for minorities a sufficient reason for criminalizing certain forms of hate speech?

For more on judicial interpretation of the Charter: re:politics (formerly, Maple Leaf Web): Supreme Court Charter Decisions and Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest

Importance of Judicial Interpretation

How the courts interpret the nature and scope of Charter provisions has important implications for Canadian politics and public policy. Differing interpretations of Charter rights can result in different sorts of limits and/or opportunities for government policy and action.

Take, for example, the issue of same-sex marriage. Several provincial courts determined that governmental laws, which defined marriage as between a man and a woman, violated the Section 15 Charter right to equality. For these courts, the traditional definition of marriage discriminated against gay and lesbian couples by denying them the right to obtain legally recognized marriages. In deciding this case the courts accepted a particular interpretation of the Charter right to equality. For example, they accepted sexual orientation as a basis of discrimination, even though it is not explicitly recognized under the Charter. (Section 15 only states that persons may not be discriminated based on “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”) Moreover, the courts found that denying same-sex couples the right to obtain legally recognized marriages resulted in inequality, even though most other marriage-related rights (such as spousal benefits) had been previously extended to same-sex couples.

These court decisions had a major impact on government policy. Federal, provincial, and territorial marriage-related laws have now been amended to included same-sex couples. More importantly, the judicial interpretation of the Charter places significant restrictions on the ability of governments to promote traditional forms of marriage in Canadian society. Whether or not one agrees with this outcome, the significance of judicial interpretation of the Charter cannot be denied.

For more on the Charter and same-sex marriage: re:politics (formerly, Maple Leaf Web): Legalization of Same-sex Marriage in Canada

It is important to note, however, that the judiciary does not have the final say on these sorts of issues. The notwithstanding clause under Section 33 of the Charter does provide governments with the ability to over-ride judicial decisions and exempt laws from certain Charter rights. As such, governments could have protected the traditional definition of marriage by simply including a statement that the definition was exempt from Section 15 of the Charter. In fact, two votes were held in the (federal) House of Commons on this matter. In both cases, however, a majority of Members of Parliament voted against overriding the judicial interpretation of the Charter.

For general information on the Charter’s notwithstanding clause: re:politics (formerly, Maple Leaf Web): The Not-withstanding Clause. Also see the Application & Enforcement of Charter Rights section of this article for more on the Section 33 not-withstanding clause.

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