Please read the disclaimer before perusing the following article.
(written 1991 published Beef in B.C. March/April 91)
When the Canadian Charter of Rights and Freedoms was entrenched in the Canadian Constitution on April 17, 1982, it made an enormously significant change in the Canadian legal system. The full effect of the Charter is still not known. To date, the Charter has had most impact in the area of criminal law. However it is likely that in the future, the Charter will increasingly be used to answer questions about the non-criminal relationship between the individual and the state or its institutions.
The Charter does not change the division of powers between the federal and provincial governments in our original constitution, the British North America Act (now the Constitution Act, 1867). Rather, it allows Canadians to test a law enacted by a federal or provincial government, to see if it meets Charter requirements. If it does not, the law is struck down.
Before the Charter, the federal parliament had enacted the Canadian Bill of Rights. The Bill of Rights, however, was merely a federal statute with no greater status than any other federal statute. It only affected issues under federal legal jurisdiction. Judges tried to interpret potentially offending legislation to make it compatible with the Bill of Rights, rather than using it to strike down the legislation.
The Charter is greater than either the federal parliament or a provincial legislature. Any legislation enacted in Canada, either provincial or federal, must conform to the Charter or risk being struck down—unless the legislating government uses the “not withstanding” clause in section 33 of the Charter.
One of the first and most obvious effects of the Charter is that the power and responsibility of the judiciary is increased. It, rather than parliament, now has the final say on whether legislation is lawful. This effect was predictable, and was predicted, at the time of Charter enactment, and has been the subject of continuing and even increasing controversy since then.
What does the Charter actually say? A number of its provisions are set out below along with some examples of how they have been used.
The “reasonable limits” provision has been used by the Supreme Court of Canada to allow institutions to have a mandatory retirement policy. Although requiring retirement at a certain age is clearly discrimination based on age and contrary to section 15 of the Charter, the Supreme Court decided that the necessity for mandatory retirement could be justified under section 1. This case is also an example of the Charter being used in a non-criminal context.
Convictions for circulating hate literature have been challenged under this section.
Sections 3, 4 and 5 of the Charter deal with the right of the citizen to vote and to be qualified for membership in a parliament or legislature, the length of time a government can continue in office, and require parliament and each legislature to sit at least once every twelve months.
Section 6 of the Charter gives mobility rights into and out of Canada, and as between provinces, to Canadian citizens. Every citizen has the right to seek work in any province. Affirmative action programs are permitted:
[The previous provisions] do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
Section 7 then reads:
The former Criminal Code provisions about abortion were struck down under section 7. The Supreme Court of Canada justices were of the view that the hospital abortion committee procedure was an infringement of a woman’s entitlement to security of the person. Two of the justices also believed that the provisions of the Code were also an infringement of the woman’s liberty.
Where there is no warrant, a search and seizure is lawful only when there is some reasonable basis to believe that the searched person has committed an offence and that evidence concerning that offence will be found if a search is conducted. Surreptitious electronic surveillance of an individual by an agency of the state also constitutes an unreasonable search or seizure. If a search or seizure is found unreasonable, evidence gained may be excluded in court.
A “spot check” to check one’s driver’s licence and proof of insurance and to observe the driver’s condition or sobriety is a detention within the meaning of this section. However some provincial legislation brings spot checks within the “reasonable limits” provision of section 1.
This section probably had the most immediate impact on the judicial system when the Charter was brought in. Many criminal charges have been successfully defended on the basis that the rights given by section 10 were not made available.
Section 11 deals with the rights of an individual charged with an offence, including the right to be tried within a reasonable time. Cases which take too long to get to trial offend this constitutional requirement.
Section 11 also entrenches the presumption of innocence—“any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.
The Charter has been used to strike down mandatory sentences when the punishment prescribed is so grossly disproportionate as to outrage standards of common decency.
Sections 13 and 14 allow a witness to give evidence without that evidence being used against the witness in another proceeding, and enshrine the right to an interpreter if a party of witness does not understand the language in which the proceedings are being held.
(1) 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 and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Section 15 does not guarantee that all citizens will be equal one with another. Rather it says that the law must be applied equally to all citizens. Again, affirmative action programs are deemed not to be discriminatory.
Sections 16, 17, 18, 19, 20, 21, 22 and 23 deal with the two official languages of Canada and ensure that proceedings of parliament, parliamentary statutes and records, and communications from federal institutions are available in both languages. Either French or English may be used by any person in any court established by Parliament (in British Columbia this means the Supreme Court of British Columbia and the British Columbia Court of Appeal). Section 23 provides minority language educational rights.
Section 24 contains the procedures for a judge to consider admission or exclusion of evidence where a breach of the Charter has occurred.
The Charter continues on through section 34, including a statement that the Charter does not affect aboriginal rights and freedoms. It states that Canada has a multi-cultural heritage to be preserved and enhanced, and that Charter rights and freedoms are guaranteed equally to male and female persons.
Section 33 contains an override clause where federal or provincial governments can declare that their legislation shall operate notwithstanding section 2 or sections 7 to 15 of the Charter. This declaration is to end five years after it comes into force.