The Charter of Rights and Freedoms is 40 years old and still shaking things up
Canada Day | Gregory Beatty | June 30, 2022
The Charter of Rights and Freedoms is a proud Canadian symbol. One 2015 survey even ranked it Canada’s top symbol ahead of the flag, anthem, RCMP and hockey.
The Charter was enacted in 1982 so this year marks its 40th anniversary. With everything else going on these days, the actual signing date (April 17) didn’t get much attention. But with Canada Day upon us, we contacted Patricia Paradis, Executive Director of University of Alberta’s Centre for Constitutional Studies, to get her take on the Charter at 40.
The Charter was part of an initiative by the Pierre Trudeau-led federal Liberal government to assert Canadian sovereignty from Britain by “patriating” our constitution. The signing ceremony in 1982, with Queen Elizabeth II in attendance, took place on Parliament Hill on a chilly and blustery day — which, considering the fraught political struggle that preceded the Charter being adopted, was perversely appropriate.
“One concern the provinces had is there would be a lot more power given to courts,” says Paradis.
“Say, a province passes a law, and someone says, ‘That’s a breach of my Charter right.’ Then that goes to the courts, and the courts can strike the law down,” she says. “In many cases since then, that has happened. The government is always at liberty to draft another law, but the court has the ability to declare a law unconstitutional based on the Charter.”
Over the years, courts have issued hundreds of judgments that have helped reshape Canadian society. Indigenous sovereignty and land rights, access to abortion, same-sex marriage, the right to collective bargaining and to strike, medical assistance in dying, harm reduction and Sunday shopping are just a few of the areas where courts have applied the Charter.
In conservative circles, the progressive nature of some Charter rulings has led to accusations of judicial activism. But it’s important to remember that the Charter applies to all Canadians, says Paradis.
“The Charter is a legal tool that the federal government and provinces came up with to hold governments accountable when it came to certain rights and freedoms. Some of those do apply to vulnerable populations and minority groups. That would primarily be s.15, which is the equality rights provision. But the Charter has many other sections.”
Thirty-four, to be exact. Other notable provisions include s.2 (protection of fundamental freedoms such as expression, thought, association and religion); s.3 (right to vote and run for election); s.6 (right to travel inside and out of Canada) and s.7 (right to life, liberty and security of person).
While the Charter’s impact has been profound, the polarized state of our current politics raises important questions about the future. Best case scenario: our Charter rights could expand [see sidebar].
Worst case? Well, just look south of the border to see where that could lead.
Forty years in, probably the biggest concern with the Charter comes from the concession Ottawa finally made to the provinces to reach agreement. It came in the form of s.33, which gave provinces wriggle room when legislating in three key areas: fundamental freedoms (s.2), life, liberty and security of person (s.7) and equality (s.15).
Specifically, s.33 allows provincial governments to expressly declare that a law will be enforced “notwithstanding” a negative court ruling.
Quebec, which is not party to the constitution, has routinely used s.33 to shield laws in sensitive areas, like language and culture, from judicial scrutiny.
Other provinces, though, wary about being branded authoritarian for dismissing a court ruling, have generally shied away from invoking s.33. With two notable exceptions.
In 1986, Grant Devine’s PC government in Saskatchewan used s.33 to force through back-to-work legislation against SGEU. Then in 2000, Alberta used s.33 to outlaw same sex marriage — a move ultimately ruled unconstitutional by the Supreme Court.
Recently, though, provinces have become bolder, says Paradis.
Within weeks of being elected in Ontario in 2018, Doug Ford’s PC government vowed to use s.33 to enforce a law cutting Toronto city council by half should the law be ruled unconstitutional — this while Toronto was holding a municipal election.
The law was ultimately upheld, so it didn’t come to that. But in June 2021, the Ford government did invoke s.33 to enforce a bill on third-party election spending that had been ruled unconstitutional.
In the same timeframe, Saskatchewan and New Brunswick flirted with invoking s.33 — the former with the School Choice Protection Act (2018), which allows separate schools to siphon non-Catholic students from the public system; the latter in connection with a 2019 law on proof of immunization.
“There is a concern about the number of governments that are beginning to invoke the notwithstanding clause, especially when they invoke it preemptively. They put it right into the legislation,” says Paradis.
“What would be most useful would be to have some direction from the Supreme Court as to when and how s.33 can be used,” she adds. “One thing people are saying is it ought not to be used preemptively. Instead, if you are going to invoke s.33 there should be a debate in the legislature.”
To highlight the severity of invoking s.33, says Paradis, it’s also been suggested that the government should have to meet a higher threshold than a simple majority. “It’s such a major thing to tell people their rights are denied, so maybe it should be 60 or 70 per cent.”
Quebec’s Bill 21 (religious symbols law) is winding its way through the courts and seems destined to reach the Supreme Court. It presents a perfect opportunity for the court to provide some direction on s.33 — especially in light of a novel argument the plaintiffs are making tied to s.28 of the Charter which reads: notwithstanding anything in this charter, all rights will be guaranteed equally to male and female persons.
“People argue s.28 was meant to apply to all other Charter provisions to ensure that nothing could be used to discriminate against male and female persons,” says Paradis.
“In the Quebec case, they’re saying if Bill 21 specifically prevents Muslim women from getting jobs as teachers, police officers, whatever, because of their religious dress, then because s.33 is making that possible, s.28 should override that section. It will be interesting to see if the court ultimately finds s.28 can be used to override s.33.”
Rites & Freedumbs
Charter rights are not absolute. We were reminded of that recently with the convoy protests, where a dog’s breakfast of groups weighted heavily to the far right have tried to argue that public health measures enacted to contain a deadly and contagious pandemic infringed on their Charter rights.
In legal cases so far, protestors have been stymied by s.1 of the Charter which says the rights and freedoms listed are guaranteed “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
In non-legalese: while individual rights are important, they must be balanced with the broader public good.
Libertarians might rage, but s.1 is no legal escape hatch, says Paradis.
“The government has to do a good job of justifying what it’s done. It isn’t given carte blanche.”
The test the court uses was laid out in Oakes (1986), says Paradis. “When courts look at s.1, they use the principle of proportionality. Is the harm caused by the breach greater than the government’s justification for what it’s done? In most cases involving pandemic restrictions governments have been found to be justified — in restricting mobility rights, for example.”
But, again, s.1 is not carte blanche. Twenty-eight months into the pandemic case levels are dropping and vaccines are available, so some constitutional scholars have argued, says Paradis, that what governments did early on might be more justifiable than any steps they might take now.
“It’s an evolving situation, and ultimately the government has to be accountable to the people,” she says.
Even when our politics was less partisan, the Charter was a bit of a political football. Consider the tortured history of the Charter Challenge Program the Trudeau government created to help vulnerable groups fund important equality and language rights challenges.
The program ran until 1992, when it was cut by Brian Mulroney’s PC government. Funding was restored by Jean Chretien’s Liberals, then cut again by Stephen Harper’s Conservatives, and finally restored again by the Justin Trudeau Liberals.
Thanks to institutional safeguards to promote an independent judiciary, Canada’s court system has yet to be infected with the vicious partisanship that has taken hold in U.S. courts. But you can bet Canada’s hard-right conservatives are taking notes.
“The unfortunate thing in the U.S. is that the court seems to be split between Republicans and Democrats, which is very problematic,” says Paradis.
“You do not want to politicize your court. You want to know that when judges are appointed they are going to be unbiased and just rely on the law,” she says.
“Of course, there’s always room for interpretation.”
As the recent Charter confusion with the convoy protests shows, while Canadians may love the Charter, they maybe don’t have the best understanding of how it operates. With disinformation growing exponentially on social media, that’s a big concern, says Paradis.
“It’s a shame there isn’t more time, effort and money spent educating the Canadian public about their own constitution,” she says. “People in a democratic society need to know how their own constitution works because it’s at the heart of what their democracy looks like.”
Here Comes Climate Court
Plaintiffs arguing that government inaction on climate change and other environmental issues is a Charter violation haven’t had much judicial success.
That could soon change, says Patricia Paradis.
“Courts will always consider the facts before them,” she says. “And the facts around climate change, and the problems it’s causing throughout the world, and in Canada, are undeniable at this point.”
That reality was reflected in the Supreme Court’s 2021 ruling on the Greenhouse Gas Pollution Pricing Act, says Paradis.
“The court decided there is something in the constitution called Peace, Order and Good Government, and within that is an element called National Concern,” says Paradis.
“In the decision the court said GHG pollution travels between provinces,” she says. “It’s not something that is restricted to a province, so it can’t be left to individual provinces to make their own decisions. The court said instead it is something of national concern.”
A second environmental case — this one an Alberta challenge (with Saskatchewan support) to bill C.69 which establishes a federal assessment process for major development projects — will reach the Supreme Court soon.
As with Alberta’s earlier GGPPA fight, the province won in Alberta Court of Appeal, with judges ruling four to one that bill C.69 infringed on provincial jurisdiction over natural resources.
“Environmental rights, per se, are not protected in the Charter,” says Paradis. “So people have asked, does the right to life, liberty and security of person include the right to a clean and healthy environment?”
“It will be interesting to see what the Supreme Court says. But increasingly, I think courts are going to be tuned into the impact of climate change on Canadians,” she says.