Charter of Rights and Freedoms

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Charter of Rights and Freedoms | Copyright Dominique Clément / Clément Consulting

The Charter of Rights and Freedoms had a profound impact on Canadian law. Even its very existence was noteworthy. Canada’s rights culture was once premised on the principle of Parliamentary supremacy. It was a foundational principle of the Canadian state that rights were best protected through Parliament rather than a written bill of rights. In 1982, Canadians embraced the notion of using the courts to enforce a written bill of rights, even if this meant frustrating the will of Parliament.

It was a testament to the implications of the new constitution that governments needed several years to change their laws to ensure conformity with the equality section. The implementation of section 15 was delayed for three years. British Columbia, for instance, which had to amend 49 statutes, had a long-standing law – the Barber’s Act and Hairdresser’s Act – that banned women from cutting the hair of a girl or boy under seven years old. Over the next few years, the equality section redefined family law, criminal law, employment law and a host of other legal regimes on a range of issues from sexual orientation to poverty and disability. It would also produce some of the most controversial Charter jurisprudence: same sex marriage; sexual orientation as a prohibited ground of discrimination; spousal benefits for common law and same sex couples (one case, M v H, led to the amendment of 58 federal and hundreds of provincial statutes); prisoners’ voting rights; girls’ right to play in boys sports leagues; sign language in hospitals; and pay equity for women. In one of its most important decisions, the Supreme Court of Canada affirmed Aboriginal people’s territorial rights unless there was evidence that the government had extinguished the right in the past (R. v. Sparrow [1990]).

Among the most significant early litigation surrounding the Charter was language rights. The court struck down key elements of the Parti québécois’ signature legislation (Bill 101) that, among other things, would have forced children to be educated in French (Attorney General of Quebec v. Quebec Association of Protestant School Boards et al., [1984]; and Ford v. Quebec (Attorney General) [1988]). The court further determined that not only did French language minorities outside Quebec have a right to education (where numbers warrant), but also a degree of control over that education because such “management and control is vital to ensure that their language and culture flourish. … minority language groups cannot always rely upon the majority to take account of all of their linguistic and cultural concerns” (Mahe v. Alberta [1990]). A year later, the court held that all of Manitoba’s laws were invalid because they were not published in English and French. To avoid the inevitable legal chaos, the judgement was delayed until the province could translate its statutes (Manitoba Language Rights [1985]).

The Supreme Court of Canada was especially assertive in expanding the scope of due process. For instance, although the right to silence during police investigations was purposefully excluded from the Charter, the court interpreted the Charter as guaranteeing that right as part of the right to counsel. More than half of its Charter decisions between 1983 and 2003 involved the conduct of police officers. The court mainly addressed the right to counsel, burden of proof, trial within a reasonable time, the right to a hearing and the admissibility of evidence. These judgements have led to a host of new due process rights: the police are required to inform detainees of the right to a lawyer, the availability of legal aid and to contact a lawyer of their choosing; the right to a speedy trial (which has led to the dismissal of tens of thousands of criminal charges due to delays); a right to silence during pre-trial investigations; and a right against self-incrimination, including blood samples, DNA or interrogations when intoxicated (in one case, the court dismissed evidence of an undercover officer who was placed in a prison cell to solicit a confession). [There is no right to free legal aid; however, the court determined that separating a child from its parents constituted a violation of the right to physical security because it harmed the mental and physical security of parent and child. In these cases, the state is obligated to provide parents with legal aid.] Prisoners have a right to a lawyer during disciplinary hearings, and refugee claimants have the right to an oral hearing. The reverse onus of proof provisions in the Narcotics Control Act were struck down (they required people caught with drugs to prove they were not traffickers), and the court nullified minimum jail sentences for importing narcotics on the grounds that it was cruel and unusual. The court also frustrated Parliament’s initial attempt to ban a woman’s sexual history (and medical records) in sexual assault cases because it violated the accused’s right to a fair trial. It then forced Parliament to revise legislation that prohibited sex with minors under 14 years old, but affirmed the right against publicizing the names of rape victims. Over the years, the court has not hesitated to dismiss confessions and overturn convictions if there was evidence of coercion or police misconduct. At the same time, there was a noticeable decline in the number of laws nullified under the Charter since 1990 as the court sought to find a balance between public policy and new rights under the Charter. Judges, for instance, can admit evidence if errors are made in good faith or if excluding evidence might put the administration of justice into disrepute.

The Charter has also transformed the right to privacy. The law criminalizing abortion survived multiple challenges in the 1970s but, in 1988, the Supreme Court of Canada declared the law inoperative on the basis that it violated the right to privacy and that the procedural delays violated the right to security of the person (the court also rejected subsequent attempts to restrict women’s access to abortions) (R. v. Morgentaler [1988]). The court had also ruled four years earlier that the right to privacy required that searches or eavesdropping be authorized under statute or common law. In one case, a police officer entered a man’s trailer while he was asleep on the couch, and found a bloody shirt, shoes, cigarette package and money linking him to a murder. The court ordered a retrial and excluded some of the evidence. The court has further restricted the search powers of regulatory bodies and excluded DNA or blood samples that were obtained under coercion (or, in a few cases, while the accused was unconscious) because individuals have a high expectation of privacy. [Video surveillance in a private dwelling without a warrant is also a violation of the right to privacy. In some situations, such as border crossings, people have a lower expectation of privacy.] In one case, the police used a traffic violation to affect a body-cavity search on a suspected heroine dealer. The court ordered a new trial and excluded the evidence.

Under the Charter, the Supreme Court of Canada has dramatically expanded the scope of free speech in the context of secondary picketing; advertising to children under thirteen years old; publishing polling data within three days before an election; advertising by dentists; spending during a referendum; importing literature deemed obscene; English language signs in Quebec; and promoting hate speech. [The court determined in several cases, such as the ban on advertising to children under 13 years old, secondary picketing and the hate speech provisions of the Criminal Code, that the law violated free speech but was legal under section one of the Charter.] To protect freedom of religion, the court ruled that federal Sunday closing laws were invalid, and struck down requirements that home schooling instructors have a certificate issued from a school board. It has also redefined the duty to accommodate, such as creating a teenager’s right to wear a kirpan (ceremonial dagger) to school or requiring employers to accommodate people with disabilities (the standard being whether or not accommodation causes undue hardship) (Multani v. Commission scolaire Marguerite-Bourgeoys [2006]). The right to free press has led to the nullification of laws restricting media coverage of matrimonial disputes or pre-trial civil hearings. The court also determined that there was a right to have sign-language interpreters in hospitals. [The court also nullified legislation that allowed for the indeterminate detention of individuals found not guilty for a crime by reason of insanity; a Criminal Code provision banning convicted sex offenders from loitering in public places; and a requirement that political parties field at least fifty candidates to participate in federal elections – the latter on the basis that the law violated democratic rights.] Non-citizens also had rights. Through a creative interpretation of the equality section, and applying the doctrine of analogous grounds, the court has extended equality rights to new groups of people including gays and lesbians, non-citizens and unmarried couples.

The Supreme Court of Canada was initially hostile to any suggestion that the Charter’s guarantee of freedom of association included the right to strike or collective bargaining. The court ruled against organized labour in a series of challenges to wage controls, prohibitions on strikes, union recognition, decertification and back to work legislation. Although Chief Justice Brian Dickson acknowledged that the “role of association has always been vital as a means of protecting the essential needs and interests of working people,” the court did not accept that freedom of association meant the right to strike (Public Service Employee Relations Act). This did not prevent the court from extending freedom of association to advertising or the right of two companies to merge. In fact, only a year earlier, an Ontario judge ruled that a union could not use its members’ dues to support a political party even though such a restriction would not apply to a professional organization or a corporation (the Supreme Court of Canada overruled the decision in 1991). However, in 2007, the court ruled that freedom of association included a procedural right to collective bargaining (Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia [2007]; Ontario (Attorney General) v. Fraser [2011]). Then, in 2015, the court went in a completely refuted its earlier position and declared that the right to freedom of associations did, in fact, include the right to strike (Saskatchewan Federation of Labour v. Saskatchewan [2015]; and Mounted Police Association of Ontario v. Canada (Attorney General) [2015]).

The number of rights-related cases increased from 20 per cent of the court’s docket before 1975 to more than 60 per cent after 1982. During the peak of the court’s rights litigation, between 1982 and 2003, the Supreme Court invalidated 64 statutes, of which 44 per cent dealt with due process and 27 per cent dealt with civil liberties. In contrast, in most years before 1982, the Court often did not find a single statute invalid, whereas the Court has invalidated at least one statute every year since 1982. The rate of judicial review has expanded dramatically under the Charter. Alongside its landmark right to strike decision, the court also struck down criminal code prohibitions on solicitation (prostitution) as well as assisted suicide (Carter v Canada (Attorney General) [2015]; and Canada (Attorney General) v Bedford [2013]).


Further Reading

Clément, Dominique. Equality Deferred: Sex Discrimination and British Columbia’s Human Rights State, 1953-1984. Vancouver: UBC Press and the Osgoode Society for Canadian Legal History, 2014.

Dixon, Rosalind. “The Supreme Court of Canada and Constitutional (Equality) Baselines.” Osgoode Hall Law Journal 50, no. 3 (2013): 637-69.

Epp, Charles R. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press, 1998.

Fudge, Judy. “The Effect of Entrenching a Bill of Rights Upon Political Discourse: Feminist Demands and Sexual Violence in Canada.” International Journal of the Sociology of Law 17, no. 4 (1989): 445-63.

James, Matt. Misrecognized Materialists: Social Movements in Canadian Constitutional Politics. Vancouver: UBC Press, 2006.

Kelly, James B. Governing with the Charter: Legislative and Judicial Activism and Framers’ Intent. Vancouver: UBC Press, 2005.

Knopff, Rainer, and F. L. Morton. The Charter Revolution and the Court Party. Peterborough: Broadview Press, 2000.

Mandel, Michael. The Charter of Rights and the Legislation of Politics in Canada. Toronto: Thompson Educational Publishing, 1994.

Manfredi, Christopher. Feminist Activism in the Supreme Court: Legal Mobilization and the Women’s Legal Education and Action Fund. Vancouver: UBC Press, 2004.

McLachlin, Beverley. “The Charter 25 Years Later: The Good, the Bad and the Challenges.” Osgoode Hall Law Journal 45, no. 2 (2007): 365-77.

Sharpe, Robert J., and Kent Roach. Brian Dickson: A Judge’s Journey. Toronto: University of Toronto Press, 2003.

Smith, Miriam. A Civil Society? Collective Actors in Canadian Political Life. Peterborough: Broadview Press, 2005.

Songer, Donald R., Susan W. Johnson, and Jennifer Barnes Bowie. “Do Bills of Rights Matter? An Examination of Court Change, Judicial Ideology, and the Support Structure for Rights in Canada.” Osgoode Hall Law Journal 51, no. 1 (2013): 297-329.

Tucker, Erik. “The Constitutional Right to Bargain Collectively: The Ironies of Labour History in the Supreme Court of Canada.” Labour/Le Travail 61, no. 1 (2008): 151-82.

Waldron, Mary Anne. Free to Believe: Rethinking Freedom of Conscience and Religion in Canada. Toronto: University of Toronto Press, 2013.