Charter, Parliamentary Government, and Judicial Independence
This class continues Chapter 6 - The Constitution and begins the transition toward Chapter 7 - Rights and Freedoms. It reviews major Charter sections, official-language and minority-language rights, Indigenous rights in the Constitution Act, 1982, the broader effects of the Charter on Canadian politics, and the conventions underlying parliamentary government. The class ends with a discussion of judicial independence and the separation of powers.
Key Concepts
- The legal-rights sections of the Charter have generated extensive litigation because they directly affect policing, criminal procedure, detention, and trial rights.
- Section 15 equality rights prohibit discrimination but also explicitly permit affirmative-action-style programs.
- Canada’s constitutional language regime is more complex than many students assume: New Brunswick is the only constitutionally bilingual province.
- Section 23 protects minority-language education rights across Canada, subject to numbers sufficient to warrant services.
- The Charter and Constitution Act, 1982 also constitutionalized Indigenous and treaty rights.
- Canadian parliamentary government relies not only on written law but also on constitutional conventions such as responsible government.
- The King-Byng Affair and the 2008 prorogation crisis illustrate the reserve powers of the Crown and the uncertainty surrounding them.
- Judicial independence requires judges to be free from political interference, but tensions arise around appointments, public commentary, and perceptions of bias.
Legal Rights Under the Charter
The lecture resumes with sections 7 to 14 of the Charter, described as the part of the Charter that has generated the most litigation.
Section 7: Life, Liberty, and Security of the Person
Section 7 protects life, liberty, and security of the person. The lecture highlights two major examples of its importance:
- the Morgentaler decision, which struck down the Criminal Code provisions restricting therapeutic abortion
- legal developments that eventually supported MAID (medical assistance in dying)
The lecturer emphasizes that section 7 has been a foundation for major constitutional challenges involving bodily autonomy and state coercion.
Sections 8 to 14
The class then surveys the rest of the legal-rights cluster:
- section 8: protection against unreasonable search or seizure
- section 9: protection against arbitrary detention or imprisonment
- section 10: rights on arrest or detention, including habeas corpus and access to counsel
- section 11: rights of persons charged with offences, including trial within a reasonable time and reasonable bail
- section 12: freedom from cruel and unusual treatment or punishment
- section 13: protection against self-incrimination
- section 14: right to an interpreter
Exam Alert
The legal-rights sections of the Charter matter because they directly shape the operation of the criminal-justice system: police conduct, detention, trial procedure, evidence, and punishment.
Equality Rights and Affirmative Action
Section 15 states that every individual is equal before and under the law and entitled to equal protection and equal benefit of the law without discrimination.
The lecture stresses two points:
- The listed grounds include race, national or ethnic origin, colour, religion, sex, age, and mental or physical disability.
- Section 15(2) explicitly allows programs aimed at improving the condition of disadvantaged groups.
This means that affirmative action is constitutionally protected in Canada, unlike in the US, where it is not expressly written into the Constitution.
Common Mistake
Do not read section 15 as banning all differential treatment. Section 15(2) allows differential treatment when the goal is the amelioration of disadvantage.
Official Languages and Minority-Language Education
The class then turns to sections 16 to 23 of the Charter.
Official Languages
A key clarification from the lecture is that New Brunswick is the only constitutionally bilingual province. Federal institutions are bilingual, but most provinces are not constitutionally required to provide full bilingual service in the same way.
Section 20 is used to explain that service rights in English or French depend partly on:
- whether one is dealing with a federal head office
- whether there is significant demand for services in the minority official language in a given location
Minority-Language Education Rights
Section 23 gives Canadian citizens educated in English or French in Canada the right to have their children educated in that minority language anywhere in the country, where numbers warrant.
The key case discussed is Arsenault-Cameron v. Prince Edward Island (2000), where francophone families successfully argued that a distant French-language school imposed an unreasonable burden on their section 23 rights.
Exam Alert
Section 23 is not just symbolic. It has concrete policy consequences, including forcing provinces to create or relocate minority-language schools when numbers and burdens justify it.
Indigenous Rights in the Constitution Act, 1982
The lecture then highlights sections 25 and 35.
Main points:
- Charter rights are not to be interpreted so as to diminish Aboriginal, treaty, or related rights.
- Section 35 recognizes and affirms existing Aboriginal and treaty rights.
- The Constitution recognizes Indigenous peoples in the categories of Indian, Inuit, and Métis.
- Older documents such as the Royal Proclamation of 1763 still matter in Canadian constitutional law.
This section links back directly to Chapter 16 - Aboriginal Politics.
Major Changes Brought by the Charter
Using a CBC piece on the Charter’s anniversary, the lecturer identifies major changes attributed to Charter litigation.
1. Limiting Police Powers
The Oakes case (1986) is used to show how the courts interpret section 1 limits. The government defended a reverse-onus provision in narcotics law by saying the drug problem was serious enough to justify exceptional measures. The Court disagreed and held that the infringement on the presumption of innocence was disproportionate.
This is a classic illustration of the Oakes test logic: even legitimate policy goals must be pursued by proportionate means.
2. Women’s Reproductive Rights
The Morgentaler (1988) decision is presented as a major Charter turning point. The Court struck down abortion restrictions, and Justice Bertha Wilson framed liberty as including personal autonomy over deeply private decisions.
3. Recognition of LGBT Rights
Although sexual orientation and gender identity were not explicitly written into section 15, the courts interpreted them as analogous grounds of discrimination, extending Charter protection beyond the enumerated list.
4. Language Rights
The Charter strengthened francophone minority-language rights outside Quebec.
5. Aboriginal Rights
The Charter and Constitution Act, 1982 strengthened treaty, consultation, and land-rights claims.
6. Judicial Activism and Policymaking
The lecturer notes an important debate: critics such as Rainer Knopff argue that the biggest effect of the Charter has been a transfer of policymaking power from legislatures to courts, especially on contested moral or social issues.
Parliamentary Government and Constitutional Conventions
The lecture then shifts away from the Charter toward the basic structure of parliamentary government in Canada.
A major point is that parliamentary government operates through both:
- the written constitution
- constitutional conventions, which are unwritten but widely accepted rules
Head of State vs Head of Government
The lecture stresses the distinction between:
- head of state: the monarch, currently King Charles III
- head of government: the prime minister, currently Mark Carney
The governor general exercises the monarch’s powers in Canada, and lieutenant governors do so provincially.
Responsible Government
Responsible government does not mean merely governing well. It means governing with the confidence of the House of Commons.
A government must be able to win key votes, especially:
- motions of non-confidence
- the throne speech
- the budget
- crucial government legislation
If it loses confidence, the prime minister normally must either:
- resign, or
- ask the governor general to dissolve Parliament and call an election
Exam Alert
Responsible government means the executive must retain the confidence of the elected House of Commons, not simply hold office under the written Constitution.
Party Discipline and Confidence
The lecture points out that responsible government operates in practice through strong party discipline. MPs in Canada rarely defy their party leadership, so confidence is usually maintained through disciplined voting blocs rather than constant independent legislative bargaining.
The King-Byng Affair and the Reserve Powers
The 1926 King-Byng Affair is presented as the classic case of reserve powers in action.
Sequence:
- Mackenzie King lost a vote in the House of Commons.
- He asked Governor General Lord Byng for dissolution and a new election.
- Byng refused and instead invited Arthur Meighen to try to form a government.
- Meighen’s government quickly failed.
- An election followed, and the Liberals turned the affair into a campaign about Canadian autonomy and whether a governor general should overrule a Canadian prime minister.
The lecture presents this as a precedent-setting episode in defining the political limits of vice-regal discretion.
The 2008 Prorogation Crisis
The lecturer updates the discussion with the 2008 minority-Parliament crisis:
- Stephen Harper’s Conservative minority government risked defeat.
- The Liberals and NDP proposed a coalition, backed by the Bloc Québécois.
- Rather than face immediate defeat, Harper advised Governor General Michaëlle Jean to prorogue Parliament.
- Prorogation suspended parliamentary business and prevented the confidence vote from happening at that moment.
This episode shows that reserve powers remain politically relevant even if rarely exercised directly.
Ministerial Responsibility
The class then distinguishes two forms of ministerial responsibility.
Individual Ministerial Responsibility
A minister must defend the actions of their department, even if they did not personally know every detail of what officials did.
Collective Cabinet Responsibility
Cabinet members must publicly support government policy once a decision has been made. They may disagree privately, but in public they are expected to speak with one voice. If a minister cannot defend cabinet policy, resignation is the expected response.
Judicial Independence
The final section of the class addresses judicial independence and the separation of powers.
Core Meaning
Judicial independence means judges must be free from political interference in decision-making.
Example of Contempt: André Ouellet (1976)
The lecture uses the case of a Quebec minister who publicly commented on an ongoing anti-competition case and implied that only an incompetent judge could decide otherwise than guilt. This was treated as a serious breach of respect for judicial independence, and he was forced to resign.
Appointments and Perceptions of Bias
The lecturer also notes that governments choose judges and control court budgets. A National Post study is cited to suggest that many judicial appointees had previously donated to the governing Liberal Party. This does not prove bias, but it raises questions about perception and institutional independence.
Judges and Public Commentary
The class closes with the example of Justice Bertha Wilson, who publicly criticized patriarchal biases in Canadian law. This raised a difficult question:
- Should judges remain silent outside court in order to preserve neutrality?
- Or can they speak publicly about injustice without compromising judicial independence?
The lecture leaves this as an open tension rather than a settled answer.
Definitions
Charter of Rights and Freedoms The constitutional bill of rights added in 1982 that protects civil liberties, legal rights, equality rights, language rights, and other freedoms in Canada.
Section 1 The Charter clause allowing rights to be limited by laws that can be demonstrably justified in a free and democratic society.
Equality rights (section 15) Rights guaranteeing equal protection and equal benefit of the law without discrimination, while permitting ameliorative programs for disadvantaged groups.
Responsible government The convention that the executive must maintain the confidence of the House of Commons in order to govern.
Confidence vote A vote that determines whether the government still has the support of the House of Commons.
Prorogation The suspension of a parliamentary session without dissolving Parliament for an election.
Ministerial responsibility The convention that ministers are accountable for their departments and that cabinet collectively supports government policy in public.
Judicial independence The principle that judges must be able to decide cases free from political interference.
Reserve powers Exceptional discretionary powers retained by the Crown’s representative, such as deciding whether to grant dissolution or invite another leader to form government.