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