Builds on Chapter 6 - The Constitution by exploring how rights are protected (and limited) in Canada, and the political consequences of constitutionally entrenching those rights in 1982.
Key Concepts
- Rights are framed in the language of “moral absolutes,” but in practice require compromise
- The Charter (1982) fundamentally shifted power from Parliament to the courts
- Rights claims must be anchored to a society’s core values to be considered legitimate
- The Charter applies to government action — not directly to private-sector relationships
- Rights can be limited by Section 1 (reasonable limits) or overridden by Section 33 (notwithstanding clause)
The Language of Rights
Rights are typically articulated as moral absolutes — non-negotiable entitlements. But in reality:
- Compromises are always necessary; the question is which compromises and how
- The politics of rights reduces space for negotiation and compromise, because framing something as a “right” makes it harder to trade off
- This produces the legalization of politics: political conflicts increasingly move from legislatures to courts, raising questions about democratic legitimacy
Exam Alert
The tension between rights as moral absolutes vs. the practical necessity of compromise is a core theme. Know what “legalization of politics” means and its consequences.
The Meaning of Rights and Freedoms
United Nations Universal Declaration of Human Rights, 1948 established major categories:
- Political rights / fundamental freedoms
- Democratic rights
- Legal rights
- Economic rights
- Equality rights
Contested/emerging categories of rights:
- Group rights (e.g., language rights)
- Social rights
- Environmental rights
- Animal rights
Remember
The scope of what counts as a “right” is itself politically contested — it keeps expanding as new groups frame their demands in rights language.
Emergence of Rights Issues
Rights issues do not emerge automatically — they are politically constructed:
- Rights issues emerge out of political struggle and are framed as rights issues when cultural and institutional circumstances make that the most effective strategy for pressing demands
- For a rights claim to be considered legitimate and have a chance of success, it must be anchored to one or more of a society’s core values/beliefs
Exam Alert
Rights are strategic frames, not just moral facts. Groups choose to use rights language when they believe it is the most effective path to achieving their goals.
Rights and Their Protection: Pre-Charter Era (1867–1981)
- Rights had a low profile for most of this period
- Very few court decisions were decided on a clear-cut rights basis
- Rights issues were frequently decided as federalism matters (which level of government has jurisdiction?) rather than as rights questions
Key pre-Charter cases:
| Case | Year | Significance |
|---|---|---|
| Reference re Alberta Statutes | 1938 | Early implicit rights protection via federalism |
| Saumur v. City of Quebec | 1953 | Freedom of religion / distribution of literature |
| Switzman v. Elbling (Padlock Case) | 1957 | Free expression; Quebec law against communist propaganda |
| AG Canada and Dupond v. Montreal | 1978 | Municipal power to ban public assemblies |
Canadian Bill of Rights, 1960
- Growing pressure from civil libertarians + Canada’s participation in international human rights agreements led to the Bill of Rights
- Only a federal statute (not constitutionally entrenched), so it only applied to the federal government1
- R. v. Drybones, 1970: SCC initially used the Bill of Rights to strike down a section of the Indian Act — but the Court retreated from this in subsequent rulings
Before 1982, the only constitutionally entrenched rights were associated with:
- Religion
- Language
- Elections
Common Mistake
The 1960 Bill of Rights ≠ the 1982 Charter. The Bill of Rights was only a statute, not constitutional, and only applied federally. The Charter applies to all governments in Canada.
Charter Era (1982–Present)
The entrenchment of the Canadian Charter of Rights and Freedoms in the Constitution Act, 1982 transformed Canadian politics:
- Explosion in the number of rights cases brought before the courts
- Shift in venue of political conflicts: from legislatures to courtrooms
- Parliamentary supremacy replaced by constitutional supremacy
- Increased importance of judges in the governmental process
- Debate over the “Americanization” of Canadian politics — is Canada becoming more like the US in relying on courts to resolve political disputes?
Exam Alert
The shift from parliamentary to constitutional supremacy is one of the most significant consequences of the Charter. Know what this means for the role of courts vs. legislatures.
Applying the Charter
Scope and Authority
Law Society of Upper Canada v. Skapinker, 1984 — the first major Charter case; the SCC stated:
“With the Constitution Act 1982 comes a new dimension, a new yardstick of reconciliation between the individual and the community and their respective rights, a dimension which, like the balance of the Constitution, remains to be interpreted and applied by the Court.”
What the Charter Applies To
- Applies to governments and their laws and actions
- Governs relationships between citizens and the state
- Does not apply directly to private-sector relationships
Inherently Political Questions
Some cases raise questions about whether courts should rule on them at all:
- Operation Dismantle v. the Queen, 1985
- Khadr v. Canada, 2010 (Box 7.3 in text)
Reasonable Limits (Section 1)
Section 1 of the Charter guarantees rights “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Oakes Test
From The Queen v. Oakes, 1986 — the framework courts use to determine whether a rights limitation is justified under Section 1. Requires:
- Pressing and substantial objective — the law’s goal must be important enough to justify overriding a right
- Proportionality — the means must be proportional to the objective:
- Rational connection between the law and the objective
- Minimal impairment of the right
- Proportionality between the effect and the objective
Quebec Signage (Bill 101)
The SCC ruled that Quebec’s French-only signage provisions in Bill 101 violated freedom of expression. Quebec then invoked the notwithstanding clause (Section 33) to preserve the law.
Notwithstanding Clause (Section 33)
- Allows Parliament or a provincial legislature to override certain Charter rights for up to 5 years (renewable)
- Applies to Section 2 (fundamental freedoms) and Sections 7–15 (legal rights and equality rights)
- Does not apply to democratic rights (ss. 3–5) or mobility rights (s. 6)
History of use:
- Rarely used since 1982
- Controversially invoked by Quebec in 1989 after the signage ruling
- Used more recently by the Legault government to protect Bill 21 (religious symbols ban) and Bill 96 (French language law)
- Some conservative critics argue governments should use it more often to reassert public will, especially on contentious moral issues
Exam Alert
Know that Section 33 is the notwithstanding clause, which sections it applies to, and the major Quebec uses (1989 signage, Bill 21, Bill 96).
Individual Rights, Freedoms, and Group Rights
The Charter has substantially expanded and better protected rights compared to the pre-Charter era. Key landmark cases:
Rights expanded:
| Case | Year | Issue |
|---|---|---|
| Queen v. Oakes | 1986 | Reverse onus provision in Criminal Code struck down |
| The Queen v. Big M Drug Mart | 1985 | Sunday closing laws struck down (freedom of religion) |
| Morgentaler | 1988 | Canada’s abortion law struck down |
| Vriend v. Alberta | 1998 | LGBT rights — sexual orientation read into Alberta human rights code |
| Carter v. Canada | 2015 | Right to physician-assisted suicide recognized |
| Saguenay ruling, SCC | 2015 | Municipal prayers at council meetings violate freedom of religion (state neutrality) |
| R. v. Ndhlovu | 2022 | Lifetime inclusion on sex offender registry struck down |
Rights limited (but arguably consistent with Canadian values):
| Case | Year | Issue |
|---|---|---|
| R. v. N.S. | 2012 | Wearing niqab while testifying — balance between religion and fair trial (Box 7.4) |
| R. v. Keegstra | 1990 | Hate speech prohibition upheld; limits on free expression (Box 7.7) |
| Harper v. Canada | 2004 | Limits on third-party spending during elections upheld (Box 7.5) |
Remember
Not all Charter litigation expands individual freedom — some rulings uphold restrictions on rights when those restrictions align with Canadian values like equality and multiculturalism.
Canada vs. The US: Are They Different on Rights?
Community Support for Free Expression (Pew Global, 2015 — scale out of 7):
| Country | Score |
|---|---|
| USA | 5.73 |
| Poland | 5.66 |
| Spain | 5.62 |
| Mexico | 5.40 |
| Venezuela | 5.17 |
| Canada | 5.08 |
| Australia | 4.94 |
| UK | 4.78 |
| France | 4.72 |
| Germany | 4.34 |
| South Korea | 3.83 |
| India | 3.68 |
| Pakistan | 3.28 |
| Jordan | 2.78 |
| Senegal | 2.06 |
Canada (5.08) scores slightly lower than the US (5.73) on support for free expression, suggesting Canadians are somewhat more willing to accept limits on speech — consistent with cases like Keegstra and hate speech law.
Exam Alert
The “Americanization” debate: Canada has been influenced by American rights culture but retains distinct features — particularly greater willingness to limit rights for collective/community reasons, and the existence of the notwithstanding clause (which has no US equivalent).
Definitions
Charter of Rights and Freedoms Part of the Constitution Act, 1982; constitutionally entrenches fundamental rights and applies to all governments in Canada.
Legalization of politics The process by which political conflicts are increasingly resolved through courts and legal proceedings rather than through legislatures and democratic negotiation.
Oakes Test The two-part framework (pressing objective + proportionality) used by courts to determine whether a rights limitation is justified under Section 1 of the Charter.
Notwithstanding clause Section 33 of the Charter; allows Parliament or provincial legislatures to override certain Charter rights for renewable 5-year periods.
Constitutional supremacy The principle that the constitution is the supreme law of the land and all legislation must conform to it — as opposed to parliamentary supremacy, where Parliament’s will is final.
Parliamentary supremacy The pre-Charter principle that Parliament could pass any law it wished without judicial override on rights grounds.
Footnotes
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This is a critical limitation — provinces were entirely unbound by the Canadian Bill of Rights. ↩