Introduction to The Charter

Background

Charter of Rights and Freedoms enacted as part of the Constitution Act 1982
o It is section 1 – 29 of the Constitution Act 1982

Unlike the Canadian Bill of Rights (1960), Charter is entrenched

o Protects a range of civil liberties (cf. civil rights)
o Rights are protected by strong judicial review (sort of)
– SCC can strike down laws inconsistent with Charter
o Rights impose limits on state action (federal and provincial)
- The charter imposes limits on the state
- Human Rights lawyers argue that the Charter merely limits actions of the
state rather than protects the interests of people

Role of Courts Under the Charter

• Is it legitimate to empower non-elected judges to strike down the decision of elected

representatives?
• Are judges better qualified than legislators to decide policy-laden issues?
– What does equality mean? Liberty? Freedom of expression?
• Deeply contested terms
• Are there ways to appease the concerns of judicial review?
– Section 33 of The Charter
– Section 4 of the HRA
• Is judicial activism or ideological agenda pushing a problem in Canada?

Section 1 – Limitations of rights

• Section 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’
•
• We can see the vague language starts early...
– s.1 has the effect of introducing a 2 stage process to judicial review on Charter
grounds
1. Does the law breach the Charter?
- Burden of proof is on the claimant
2. Is such a breach within ‘reasonable limits...’?
- Burden of proof switches to government

Section 33
• The ‘notwithstanding clause’
 • Allows Parliament or Legislature to enact laws ‘notwithstanding’ possible incompatibility
with certain sections of The Charter
– Freedom of expression
– Life, liberty and security of the person
– Equality
– Criminal proceeding rights
• Act of legislative body + Five year limitation
Section 33 has opened up the door to dialogue on the states interference with the Charter

Dialogue Theory
Captures the process that takes place with the government’s passing of legislation and the
courts review of it (the relationship between the courts and the legislature)

• s.1 and s.33 introduce the idea of dialogue between the court and the legislative
branches
• when a law has failed a Charter challenge, the court must stipulate why
• the legislature is then free to amend and re-enact the law in an attempt to better accord
with The Chert (s.1) or to decide that the court to be deeply mistaken (s.33)
• actual vs. metaphorical dialogue

Judicial mentions of the concept of dialogue are found in ‘second look cases’
– cases where a law is subject to multiple Charter challenges
O’Connor (1995)
Facts:
o In 1991, Bishop O’Connor was charged with rape and indecent assault of four aboriginal
women at a residential school in Williams Lake, BC. During the pre-trial process, the
judge ordered the disclosure of all records of therapists, counselors, psychologists and
psychiatrists who had treated the complainants in relation to sexual assault or sexual
abuse.
o In December 1992, proceedings were stayed in part because the trial judge did not have
confidence that full disclosure had been made by the Crown. The Crown appealed.

– the court laid down procedures for disclosure that balanced right to privacy
against right to make full answer and defense;
• In response, Parliament enacted a law that put greater weight on privacy than the
court’s suggestions in O’Connor

The statute received a ‘second look’ in R. v. Mills (1999)

– despite differing from court’s earlier suggestions, statute was upheld
– Parliament had the last word
- Essentially in this is an example of dialogue theory where the court was
more restraint and Parliament had the last word

In Morales, SCC deemed the denial of bail when ‘necessary to the

 • public interest’ too vague, and unconstitutional under s.11(e)
• On its second attempt, Parliament went with ‘on any other just cause being shown
and,...,where the detention is necessary in order to maintain confidence in the
administration of justice’

The court found in R v Hall (2002) the first part too vague, but the majority found the second
sufficiently precise.
– Speaking for the minority, Iacobucci J. thought the decision reduced ‘dialogue’ to
abdication
The court had struck down a provision of the Canada Elections Act that imposed voting
disqualifications on prisoners; it violated the s.3 right to vote and could not be justified under
s.1
• Sauvé v. Canada
– reviewed Parliament’s second attempt, which limited the disqualifications to
prisoners serving more than 2 years
– The government conceded the violation—was it justified under s.1?
– 5-4 the court ruled ‘no’
– The minority invoked the idea of dialogue, but the majority, which included
those in favour of upholding the law in Hall, deemed the right to vote ‘of special
importance’, suggesting a higher standard than the one taken in Hall
• Merely ‘trying again’ is not, by itself, sufficient.

Dialogue Theory-Remedies
• Remedial discretion: the power of the court to order remedy for Charter violations
– includes the power of the court to suspend a declaration of unconstitutionality
• Originally viewed as an emergency measure (Re Manitoba Language Rights)
• Now justified in some circumstances under the idea of dialogue
– Carter; Corbiere
• the declaration was suspended to allow time for consultation

Remedial discretion also allows for judicial oversight of the provision of remedies
• Doucet-Boudreau v. Nova Scotia (2003)
– reveals an uncomfortable level of distrust in the government on the part of the
court; it may or not be fully justified, given the long history of the government
living up to its remedial duties.

Political Questions
Invariably, the SCC is involved in the business of political controversy
• Cases are sometimes brought with the explicit purpose of furthering a political agenda
(even when they lose)
• SCOTUS occasionally declares a case non-justiable on the grounds of a ‘political
questions’ doctrine
• SCC has no such doctrine as explicitly stated by the court in Operation Dismantle v. The
Queen
 – considered the highly political Secession Reference

Charter Challenges
• A Charter challenge is a two-stage process:
– Is a Charter right violated?
– Is that violation justified under s.1?
As with challenges on federal grounds, the court must ascertain the pith and substance, or
purpose of the law being challenged
• Recall: the Sunday closings cases

R. v. Big Drug Mart (1985)

– It was deemed the purpose of the Lord’s Day Act violated s.2(b) freedom of
religion
– A highly unusual case in this regard

R.v. Edward Brooks and Art (1986)

– SCC ruled the purpose of a provincial Sunday-closing law was valid but had the
effect of abridging freedom of religion
– it was deemed justified under s.1
• Trivial effects; R. v. Jones (1986) where the effect is trivial or insubstantial, there is no
breach

Charter Interpretation
Language in Charter is sufficiently broad to require interpretation
- Understanding the Charter for when it was made and applying it to the
modern day
• Progressive interpretation v. originalism

Tension with Oakes and s.1 justification?

– Should we prefer a high standard for justification (as Oakes requires) or a broad
interpretation of rights (as a generous interpretation requires)?

Types of interpretation:
Purposive interpretation -at odds with generous interpretation? In harmony with a stringent
standard of justification?
- Hogg argues that purposive interpretation (pursing process values…what
the law in trying to do and achieving those aims) are different than
substantive values
- Megan argues that they are not different
*This could depend on how you interpret the purpose of the law
• Purpose of The Charter
– Pursuing process values (e.g. democratic government), rather than substantive
values (e.g. just or good outcomes in cases), gives judges a clear interpretive
 framework, and puts them at arms length from the substantive issues which are
properly matters for lawmakers
• Assuming this distinction is tenable, is it the correct theory of judicial review?

Hierarchy of Rights
• Hierarchy of Charter Rights:
– s.2, ss.7-15 can be overridden by s.1 or s.33 the others cannot
• Aboriginal rights (s.35) are outside Charter, and thus immune from s.1 and s.33;
however, they cannot benefit from the remedies provided for in s.24
• How did this arise? Is it justified?

Conflicts Within The Charter

• Charter contains two express mentions of conflicts between rights
– Aboriginal rights v. prohibition on discrimination based on race
– denominational school rights v. prohibition on discrimination based on religion
• s.25 and s.29 address these, noting the former in each case is the
• dominant right
• In other cases, the court typically has two options; resolve using s.1, or using mutual
modification
– interpreting each right in a way that allows the other to operate; the latter is
rarely used O’Connor

Charter Timbits
When a law is challenged on both federal and Charter grounds, the federal challenge takes
priority
• Charter took effect April 17, 1982
– violations of Charter rights before this cannot have occurred
– Violations can only be considered for laws that occurred act 1982
• s.26 provides that rights not mentioned in Charter, but which exist in common law or
statue, continue to exist
• notwithstanding Charter
– this does not afford such rights constitutional protection—they exist as they did
before Charter was enacted

Application of the Charter

Inconsistent language: ‘everyone’, ‘any person’, ‘any member of the public’, ‘anyone’
• Do corporations get protection under Charter?
– Some rights would be hollow if they did not include corporations (freedom of the
press)
– Some seem in principle to inapplicable (freedom of conscience and religion
(contrast Hobby Lobby))
• Big M Drug Mart
 – established the principle that while corporations are not protected by s.15
(equality under the law), they can still employ s.15 in a criminal defense to have
a law deemed unconstitutional

Does a foetus have rights under the Charter?

– It is not a legal person until it is separated alive from the mother
• Do illegal immigrants have rights under the Charter?
– Singh v. Minister of Employment and Immigration (1985) established that anyone
inside of Canada could at least have protection under s.7 (life, liberty...)
• In practice, anyone within Canada will qualify for most Charter rights

Citizenship is a prerequisite for some rights

– voting rights
– mobility rights
– minority language educational rights
• corporations cannot be citizens
• Permanent residents qualify for mobility rights within Canada
– corporations cannot be permanent residents

Burden of Rights
• s.32(1) makes clear that both Parliament and the Legislatures are constrained by the
Charter
• This includes when legislatures act without the participation of the Lt. Gov. (New
Brunswick Broadcasting Co. v. Nova Scotia) and, presumably, Parliament acting without
the GG
• However, it excludes such actions that fall within parliamentary privileges: one aspect of
the constitution ‘cannot be abrogated or diminished another’
– Does this distinction make sense?

Silence: Vriend established that when a legislature (or Parliament) chooses to create a right that
involves particular criteria (race, religion, sex, etc.), it opens the door to be challenged on the
list it chooses;
– silence is not always a defense
• In general, statutory powers are also subject to the
• Charter
– The exception is with corporations which, while statutory, have no coercive
powers
However, the principled idea that ‘coercive powers’ mark a principled test for being

Eldridge v. British Columbia (1997)

Equality rights for people with disability
- When interacting with Dr. does patient have rights to translator?

– Is a hospital bound by the Charter?

 • Does it have a Charter duty to provide sign language interpretation for
deaf persons seeking medical attention?
- In this case, the hospital was publically funded thus bound by Charter
Stoffmann (1990) seemed to have answered the question ‘no’
• In BC hospitals are funded by the province—the court thus deemed them to be
implementing government policy
• SCC ruled that the hospital was governed by the Charter, in this case s.15
- In this case the government was privately funded thus was not bound by
the charter (not part of the government)

Greater Vancouver Transportation Authority v. Can. Federation of Students (2009)

– Did a local transit authority’s policy of banning political messages on buses
violate freedom of expression?
– Was the authority bound by the Charter?
• Court ruled that, because the transit authority was ‘government’, its policies had to
conform with the Charter
• Hogg suggests this is imprecise—municipal governments are not part of Legislature or
Parliament, and thus do not fall under ‘government’ as defined in The Charter
– Rather, they are authorized by statute—this is why they are bound by Charter

Re Bhindi (1986)
– Do closed shop provisions in a collective agreement violate the freedom of
association?
• A closed-shop workplace is one where only members of a union are hired
• BC Court of Appeal held that as the agreement was a contract between individuals, it
was not subject to the Charter
• Hogg:
– The closed shop provision depended on statutory authority
– It used that authority to coerce employees to join the union
– Since all collective agreements have statutory force, they should be subject to
the Charter

History of Amendments

BNA (CA 1867) had no provisions to amend their constitutions

- Had to go through the UK Parliament
- 1895 (before Statute of Westminster), convention of 'joint address' was established.
Both houses of Parliament would pass a resolution requesting the UK Parliament to
make the proposed amendment.
- The reason for the lack of amendment procedures was because the framers were
content with amendments being made the same way as the BNA Act -through the
imperial parliament
The statue of Westminster codified this
- The issue here was which part of Canada could request this amendment? The federal or
provincial gov.? or both? …see below:

1930: Agreement reached which established new convention

 UK Parliament would not amend any law applying to Canada
except at the request and with the consent of Canada. (Treaty of
Westminster which gave force to the Balfour Declaration.)
o What was/is the role of the provinces?
 Before 1981: unclear
 In the Patriation Reference (1981), SCC decided that, by law,
provincial consensus was not required but, by convention, a
substantial degree of provincial consent required

Early Proposed Domestic Amending Formula

There were earlier proposals which attempted to amend the Can. Const. especially since
Canada was evolving quicker than the UK
- E.g. Same-sex rights, etc. see below…

• 1964: Fulton-Favreau:
Required unanimous consent of Parliament and all provincial Legislatures
(Rejected by Quebec)

• 1970: Victoria Charter

Required consent of
Parliament (house of commons and senate)
any province that has/had 25% of population (gives Ontario and Quebec veto)
at least 2 Atlantic provinces 8
at least 2 Western provinces which have combined population of at least 50% of Western
pop
(Rejected by Quebec)

• 1981: Vancouver formula (initial proposal for The Charter)

Required consent of
Parliament
two thirds of Legislatures representing 50% of total pop (population has to be big enough)
NB: No veto for any province;
included 'opt-out clause ‘
Rejected by PM

Part V (5) of the Charter contains procedures for amending constitutions of Canada
 • 'Procedures for Amending Constitution of Canada' ss.38-49
1. A general amending procedure (default procedure, used when a change is needed but not
sure how to go about it) (s.38)
2. A unanimity procedure for 5 defined kinds of amendment (s.41)
3. A some-but-not-all-provinces procedure (s.43)
4. A Parliament alone procedure (s.44)
5. Each legislature alone has the power to amend “the constitution of the province” (s.45)
Each procedure instantiates a different level of entrenchment

*Requests made to alter the constitution:

- Quebec is a distinct society
- They will have distinct immigration
- Appointment to the supreme court
- Quebec to limit the federal power
Request was also placed in Charlestown, this referendum was not in Quebec’s favor

Section 38 Amendments

• s.38 provides a procedure for any amendment not provided for in the four specific
procedures
• 38.(1)
'An amendment to the Constitution of Canada may be made by proclamation issued by the
Governor General under the Great Seal of Canada where so authorized by
resolutions of the Senate and House of Commons; and
resolutions of the legislative assemblies of at least two-thirds of provinces that have, in the
aggregate, according to the then latest general census, at least fifty per cent of the population
of all the provinces.
Sometimes called the seven-fifty rule (7/50 rule)
Gives effective veto to Ontario and Quebec, though no province has a constitutionally
entrenched veto
Use of Section 38
- One year must be given between when an amendment proposal is initiated
s.39(1) and s.39(2) set a time limit from when a proposed amendment is initiated.
o The proclamation of amendment cannot be issued less than one year after
initiation (unless all provinces have delivered their resolutions), and no more
than three years afterwards
 What are the implications of this?
 What is the justification?
- - This allows provinces to opt-out…to assess the amendment and decide whether they
want to go on with it or opt-out (see…s.38(3) below)

s. 46(1) states that any Legislature or house of Parliament can initiate an amendment
- Provinces can initiate an amendment as well
Under s.38(3) a province which dissents from an amendment that passes can 'opt-out' if
that amendment 'derogates from legislative powers, the proprietary rights or any other
rights or privileges of the Legislature or government of a province;
dissent can be withdrawn either before or after a proclamation is issued under s.38(4).
(proclamation must be formal) – since the province as a whole must make this decision, not
just the executive
Assent, however, can only be revoked before proclamation (s.46(2))
If a province abstains from passing a resolution which passes, they do not have the right to ‘opt-
out’ after the fact. The right to ‘opt-out’ depends on passing a resolution of dissent prior to the
issue of proclamation

If a province opts out, it is entitled to compensation under s.40, but only if the amendment
shifts provincial powers over culture and education to Parliament.
- (Feds will still provide compensation even if education and culture is opted out of an
amendment)

• While there is no constitutional guarantee of compensation for other kinds of

amendments, it is likely that opting-provinces could negotiate such compensation.
• s.42(1) stipulates 6 kinds of amendment that must use the general amending formula;
s.42(2) prohibits a province from opting out of amendments that pass when they relate to
matters listed in s.42(1)