TWENTY YEARS 

OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

                                                                                                                         By Paul K. Lepsoe

 

April 2002 marks the 20th anniversary of the adoption of the Canadian Charter of Rights and Freedoms, known in Canada simply as the “Charter”.  The Charter gave the courts important new powers for the oversight and enforcement of individual rights and freedoms in Canada. 

 

After some historical background, this article endeavours to review some of the key cases on individual rights over the twenty years of the Charter. 

 

Even twenty years later, the existence of the Charter remains controversial in Canada.  There was great debate over the manner of its adoption over the period 1980-82.  The Prime Minister of the day, Pierre Trudeau, employed the long-dormant residual legal jurisdiction of the British Parliament over the Canadian Constitution to impose the Charter on the Canadian provinces whose consent otherwise would have been needed because of the intrusion into areas of provincial jurisdiction.  Most of the provinces resisted the initiative until almost the last moment.  (The Charter was included in a package of other constitutional amendments concerning various matters including aboriginal rights and the termination of remaining British jurisdiction.)

 

In the end, only the province of Quebec was opposed to the Charter.  But the unique position of Quebec as the only province with a French-speaking majority, and with a strong separatist movement, has ensured that the controversy remains over the manner of the imposition of the Charter and the related amendments on Quebec in 1982.

 

Other provinces have been more welcoming to the Charter.  There is certainly majority support for it now, probably in all provinces including Quebec.  But at least some on the political right in particular throughout Canada remain concerned about what in their view is the immense power which the Charter gives judges to overturn legislation adopted by the elected representatives of the population.  There are also concerns about the Charter’s emphasis on individual “rights” without any apparent co-relative emphasis on “obligations” or responsibility. 

 

The Charter represented a complete shift from the concept entrenched at the Parliament of Westminster in London, and imported to Canada, of the supremacy or sovereignty of Parliament.   It must be remembered that, famously, Britain has no written constitution, and theoretically at least in the British parliamentary system, all laws passed by Parliament are of equal status and cannot be questioned by any court.  Also in the British system, many basic “rights” are contained in the accumulation of centuries of court decisions known as the “common law”. 

 

The Charter changed all that in Canada.  For lawyers of the civil law tradition, it must be remembered that under the Charter, a provision of a law which is found to violate an individual right or freedom is struck down or declared inoperative not just for that particular litigant.  Rather, the provision is declared of no force or effect at all, for everyone, for all time -- until the federal or provincial parliament, as the case may be and if ever, enacts something else in place of the provision.

 

With this background, let us look at two general provisions of the Charter.  First, section 1 provides that all rights in the Charter are subject to “such reasonable limits… as can be demonstrably justified in a free and democratic society”.  This sometimes enables the government or other parties trying to defend a piece of legislation, to “save” it even if it is found to violate a basic right.

 

Section 33 is the famous, or infamous, “notwithstanding” clause that enables a legislature to adopt a law “notwithstanding” the Charter for up to five years, and thus prevent the law being reviewed in the courts for most but not all possible breaches of the Charter. Section 33 was included to give some comfort to those who believed in traditional parliamentary sovereignty, and were concerned that judges not be given absolute power.

 

The government of Quebec used section 33 routinely in the early years of the Charter.  On technical grounds, the courts determined that it had not applied section 33 to its controversial law requiring use of French in commercial advertising (such as outdoor signs). 

 

Thus a group of English-speaking businessmen in Quebec successfully challenged the law as a breach of their freedom of expression guaranteed by section 2 of the Charter, which was not saved by section 1.  When the Quebec government lost this case at the Supreme Court of Canada in 1988 (Ford v. Attorney General of Quebec), it re-invoked section 33 after the decision in order to keep the law in force. 

 

This action led to a storm of protest across Canada.  Because of the controversy, it was thought unlikely that a government would ever use section 33 again.  Indeed the Quebec government re-wrote its language law so that it would conform to the Charter without reliance on section 33. 

 

However, recently the government of the province of Alberta used section 33 in relation to a new law re-affirming that a legally-recognized “marriage” could take place only between a man and a woman – notwithstanding section 15 of the Charter in particular. Section 15 of the Charter provides essentially for legal equality for all.   Recent court decisions on rights for homosexuals under section 15, such as the decision of the Supreme Court in M. v. H. in 1999 (which concerned the right to obtain financial support after a terminated homosexual relationship) would suggest, though it has not yet been decided by a court, that the legal institution of marriage must be available to both homosexual and heterosexual relationships. 

 

Interestingly, unlike Quebec in 1988, the use of section 33 in 2000 by Alberta concerning marriage was hardly notice or commented upon.  So perhaps use of section 33 is thinkable again, and the rights in the Charter are not so absolute after all.

 

Apart from section 2 (freedom of expression) and section 15 (equality under the law), most major Charter decisions have been under section 7 which provides that everyone has the “right to life, liberty and security of the person”. 

 

Under  section 7 of the Charter, restrictions on abortion have been struck down (Morgentaler, 1988),  and capital punishment has effectively been ruled unconstitutional (United States of America v. Burns, 2001).  Although capital punishment was abolished in Canada in the 1970s, the issue has remained over whether the Canadian government would or could allow persons to be extradited to countries where they might face the death penalty for the crimes of which they are accused. In Burns, the Supreme Court said that that the answer is no, except perhaps in the most extreme of circumstances.

 

The Supreme Court has also determined that one does not have the right to assisted suicide under section 7 (Rodriguez, 1993).  Ms Rodriguez was suffering from terrible and incurable medical problems, and wanted doctors to be able to end her life without risk of prosecution for murder.  The Supreme Court refused. 

 

There have been thousands of court decisions over the Charter’s provisions related to criminal law (the Charter has sections concerning unreasonable  search and seizure, the right to consult a lawyer, the right to a fair trial, and the exclusion of evidence obtained by illegal methods).  These decisions have led some to refer to a “Charter for criminals”.  However, it is probably true that the Charter has done little more than to strengthen only somewhat the legal protections for accused persons which existed previously under the common law.  The Charter has not changed the law very much, one way or the other, in this area. 

 

It is interesting to note that some of the most prominent and controversial court decisions over the 1982 amendments are those concerning the extension (or recognition, depending on one’s point of view) of aboriginal rights and even of aboriginal title to much land and natural resources.  The decisions are often “blamed” on the Charter by opponents.  However, these decisions actually concern constitutional amendments from 1982 that are not in fact part of the Charter. 

 

In conclusion, the Charter has not really changed the ordinary lives of Canadians. The courts have been careful not to really usurp the powers of the elected federal and  provincial parliaments.

 

The Charter has however revolutionized the popular understanding of rights.  Canadians now look to the text of the Charter as the principal and perhaps unique source of their rights, rather than to the historical and more organic tradition of the common law.  It will be interesting to see if this change really makes much difference in the long term.