Canadian Charter of Rights and Freedoms

The Charter of Rights and Freedoms, or simply the Charter, is the most visible and recognized part of Canada’s Constitution. The Charter guarantees the rights of individuals by enshrining those rights, and certain limits on them, in the highest law of the land. Since its enactment in 1982, the Charter has created a social and legal revolution in Canada. It has expanded the rights of minorities and criminal defendants, transformed the nature and cost of criminal investigations and prosecutions, and subjected the will of Parliament and the legislatures to judicial scrutiny — an ongoing source of controversy.

Before the Charter came into being, rights and freedoms were protected in Canada by a variety of laws. These included the 1960 Canadian Bill of Rights. Although important, none of these laws was part of the Constitution. They therefore lacked the supremacy and permanence of the Charter. The Bill of Rights also only applied to federal, rather than provincial laws.

What the Charter Applies To

The Charter protects Canadians against the state. It also protects minorities against parliamentary majorities. It applies to anyone in Canada, citizen         or newcomer. However, some of its rights apply only to citizens, including the right to vote and the right to enter and leave the country. Its language is more general than specific, which is one reason critics fear it gives too much interpretive power to judges.

The principal rights and freedoms covered by the Charter include: freedom of expression; the right to a democratic government; the right to live and seek work anywhere in Canada; the legal rights of people accused of crimes; the rights of Indigenous peoples; the right to equality including gender equality; the right to use Canada’s official languages; and the right of French or English minorities to an education in their language.

Section 1 of the Charter gives governments the power to limit rights and freedoms, as long as those limits can be “demonstrably justified in a free and democratic society.” There have been numerous cases of the courts upholding such limits. For example, in the 1992 Butler case, the Supreme Court of Canada said a law dealing with pornography                was a reasonable restriction on the right of free expression, because it protected society from harm in other ways.

A Global Model?

The Charter is believed by some to be moving Canada constitutionally towards the example of the United States. However, the charter may in fact offer a distinctive alternative for other nations to emulate.

A June 2012 study published in the New York University Law Review said the Charter offers a model of how to balance competing legal interests in a modern, multicultural         society. It also noted that the Charter is widely admired in the English-speaking Commonwealth. The study said the tools for establishing such a balance are found in three important sections. Section 1 says that rights are not absolute and can be limited by government as long as there is compelling evidence for doing so. Section 15 leaves equality rights open-ended to allow new groups (such as LGBTQ2S+ people) to be brought under its protection. Section 33 says governments can ignore judges’ decisions that strike down their laws, as long as they are willing to spend the political capital. These sections are key features of a constitution that encourages a dialogue between legislatures and the courts — a practice that is becoming the norm in many democracies. “Canada,” wrote US law professors David Law and Mila Versteeg in the 2012 study, “is a constitutional trend-setter among common-law countries.”

The Charter has proven over the years to be popular even in Quebec, despite its lack of official ratification by the Quebec government. A 2002 study by the Montreal-based Centre for Research and Information on Canada found that the Charter of Rights and Freedoms “is viewed favourably” in all regions of the country — with the highest rates of approval (91 per cent) in Quebec. In 2011, a survey of 1,000 Quebecers by the CROP polling organization found that 88 per cent of respondents supported the Charter.