Canadian Constitutional Law/Charter of Rights and Freedoms

Introduction
Up until 1982, the previous section covered just about all of Canadian constitutional law. In just over two decades, the Constitution Act, 1982 has had a predictably enormous impact on constitutional law. The most important section of the Constitution Act, 1982, both for the legal community and for the general population, has been the Canadian Charter of Rights and Freedoms ("Charter"). The Supreme Court of Canada has spent most of the past twenty years interpreting the Charter, and in so doing, has caused governments and lawyers to rewrite the basic rules of almost every area of public law.

Before the Charter came into effect, Canadian law had a melange of legal human rights protections. For the average person, they worked very well, although what most people now consider enormous injustices were legally inflicted on some. The Supreme Court of Canada held that the Unwritten Constitution protected some human rights. In Roncarelli v. Duplessis, [1959 121.], the Court ruled that the Constitution protected the people from arbitrary action by government officials. The federal government enacted the Canadian Bill of Rights in 1960, although it is now remembered mainly for the occasions that courts refused to apply it. In addition, some provinces had human rights legislation which forbade people from exercising their civil rights in discriminatory ways. However, as a general rule, no instrument permitted courts to strike down laws which violated human rights. This changed in 1982 by virtue of s. 52 of the Constitution Act, 1982, which stated that any law that violated the Constitution, including the new part of the Constitution containing the Charter, was of no force or effect.

In order to give full effect to the Charter, the Supreme Court of Canada decided to give the Charter a "broad and liberal interpretation." (R. v. Big M Drug Mart Ltd., [1985 1 S.C.R. 295]). The Court adopted a "purposive" approach, asking what the purpose of protecting the rights in question are, and giving effect to those purposes through the Court's interpretations of their meanings. This contrasts with the Supreme Court's interpretation of the Canadian Bill of Rights, in which the meaning of the words of the Bill were interpreted so narrowly that the Bill protected virtually no rights in practice.

Applicability of the Charter
According to s.32, the Charter applies to "the Parliament and government of Canada" and the "legislature and government of each province". It does not apply to private individuals or corporations. If Mr. Smith discriminates against Mr. Jones, Mr. Jones cannot go to court and sue Mr. Smith for violating his Charter rights (although Mr. Jones would probably be protected against discrimination by other legislation). Of course, the "legislature and government" is a broad term. How far does it apply? To organizations that receive government grants? To people who bring a private dispute to a court created by the government?

In RWDSU v. Dolphin Delivery, [1986 2 S.C.R. 573], the Supreme Court of Canada decided that the Charter did not apply to a dispute between two private parties before the courts. More controversially, it also decided that the Charter did not apply to the common law, unless the common law was the basis for government action. So, even if the common law restrictions against picketing violated the picketer's freedom of expression, the Charter would not protect him from being sued by the target of the picketing.

The "effective control test" determines whether an organization is part of the government or not for the purposes of Charter s.32. In Mckinney v. University of Guelph, [1990 3 S.C.R. 229], the Court decided that Universities are not part of the Government, even though they receive most of their money from the government. The main question to ask is how much control the government has over the institution: Is there a law that directs how the institution will operate? Does the government appoint the majority of the institution's board of directors? Does the institution have any history or guarantees of independent action from government? The greater the government control over the operation of the institution, the more likely it is to be a part of the government, although different Supreme Court decisions have required different amounts of control.

Limits on Rights
The first section of the Charter, somewhat surprisingly, is the main section placing limits on the rights and freedoms contained in the Charter. Section 1 states: "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."

For Charter rights to be limited, the limits must meet three requirements:
 * 1) They must be reasonable in a free and democratic society
 * 2) They must be prescribed by law
 * 3) They must be demonstrably justified

The second and third requirements are relatively clear. "Prescribed by law" means that the limits must be written either in legislation or regulation. A governmental limit on Charter rights cannot be arbitrarily decided by an official. Nor can it be contained in rules which do not amount to "law", such as administrative manuals. "Demonstrably justified" means that the burden of proof is on the government to prove that the limits it has imposed are reasonable. In court, this means that once the plaintiff proves on a balance of probabilities that his or her rights have been violated, the government must prove on a balance of probabilities that it is reasonable.

On the other hand, the question of what constitutes a "reasonable limit" in a "free and democratic society" is perhaps the most important question of modern constitutional law. Most major Charter cases in Canada do not turn on the question of whether a right has been violated (the courts often find that it has been), but whether the law constituted a reasonable limit on that right.

The test for deciding whether the violation of a Charter right is a reasonable limit on a right or freedom was created by the Supreme Court in R. v. Oakes, [1986 1 S.C.R. 103]. Known simply as the Oakes test, it asks the following questions:


 * Is the purpose of the legislation to limit the charter right or freedom? If so, it is not a reasonable limit.
 * Is the limit proportional to the objective? It is if it meets all of the three following criteria:
 * The limit has a "pressing and substantial objective"
 * The limit infringes on the Charter right as little as possible to meet its objective (aka the "minimal impairment test")
 * The benefit of the limit is greater than the harm caused by limiting the right or freedom

The Oakes test is still used by the Supreme Court, although it has nuanced the second part of the proportionality test. The Supreme Court found that a limit on a right should infringe at right "as little as possible" when the objective of the law is to set relations between the government and the individual (for instance, in criminal law, where it is the government against the individual). However, the government should have more flexibility when trying to strike a balance between different groups of people. This latter case would come up most often in areas of social welfare. Where the government cannot afford to give everyone equal benefits, it will almost always have to create a somewhat arbitrary dividing line, such that some people have their right to be treated equally violated. The Court must give some flexibility to the government in deciding whom to give benefits and whom to deny. In such a case, the Supreme Court reasoned in McKinney, the "minimal impairment test" is whether the government had a reasonable basis for believing that the right to equality has been violated as little as possible to achieve the government objective.

Freedom of Expression
Perhaps other than the Equality provisions, freedom of expression (Charter s. 2(b)) has created the most important litigation and had the biggest impact on Canadian society.

One of the most important questions to be litigated was what was protected as "expression". In Irwin Toy ltd. v. Quebec (Attorney general), [1989 1 S.C.R. 927], the Supreme Court ruled that anything that "conveyed meaning" was expression. This meant virtually any way that someone chose to express themselves, whether through words, acts, or depictions. Anything that conveyed meaning and was not in "an unacceptable form" (i.e., violence or threats of violence), was protected by the Charter.

The second question the Supreme Court answered in Irwin Toy was what constituted a violation of the right to free expression. If the purpose of the government restriction on expression was to restrict certain content, then that restriction violates the Charter. This includes restricting certain methods of conveying meaning that are tied to the content itself (e.g., instead of banning rock music, the content, banning FM radio, the method of conveying the music).

If the purpose of the limit is not to restrict content but to prevent certain harmful effects from the way the content is physically expressed, then the court must examine the effects of the restriction. If the restriction has the effect of frustrating "the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing", then the restriction violates the Charter. The burden of proof is then on the government to show that the restriction is reasonable under the Oakes test. If it is not reasonable, then the restriction on expression is unconstitutional.

In cases after Irwin Toy, the Supreme Court has found that political expression promotes "the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing" more than other types of expression, such as commercial advertising or pornography. Therefore, almost all restrictions on political expression have been found to be violations of the right to free expression.

Another important finding in Irwin Toy was that corporation has the right to free expression (although much of its expression will be commercial advertising, the restriction of which is not always a violation of free expression).

Search and Seizure
Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.

Under the heading of legal rights, section 8 states:
 * 8. Everyone has the right to be secure against unreasonable search or seizure.

Reasonable expectation of privacy
Generally speaking, this right does not protect against normal searches or seizures. Rather, the right focuses on the action being unreasonable on the basis that it violates an indivdual's reasonable expectation of privacy.

Equality
According to s. 15 of the Charter, everyone is equal before and under the law and has equal protection and equal benefit of the law, without discrimination. Section 15 further lists some prohibited grounds of discrimination: race, national or ethnic origin, colour, religion, sex, age, mental ability, and physical disability.

Andrews v. Law Society of British Columbia, [1989 1 S.C.R. 143]defined discrimination. Discrimination is a distinction which imposes disadvantages or withholds advantages based on the characteristics of an individual or group. A mere distinction is not enough. It must be a distinction based on characteristics that a person has because he or she belongs to a certain group.

That group must either be distinguished by one of the prohibited grounds above, or "analogous" grounds. A ground is analogous if it has some of the following similarities to the grounds listed, such as:
 * having that characteristic is not in the control of the individual
 * that characteristic cannot be altered or can only be altered at unacceptable cost
 * the groups defined by that characteristic have relatively little power in society

Andrews decided that being a non-citizen was an analogous ground of discrimination. The Supreme Court has also ruled in Vriend v. Alberta, [1998 1 S.C.R. 493] that sexual orientation is an analogous ground. Vriend is also important as being the first case in which the Supreme Court required the provinces to add a new prohibited ground of discrimination in their human rights legislation. Provincial human rights legislation, unlike the Charter, apply to private disputes.

Exclusion of Evidence
Practices regarding what evidence may be brought against an individual in trials are addressed by section 24(2). This subsection is said to make Canadian practices regarding this matter more like those in the United States; however, the Canadian standards are still not as strict as the US standards. Whereas in the US, any evidence will not be used against the individual if it was acquired in an illegal way, for evidence to be excluded in Canadian trials, it must not only have been acquired illegally but must also threaten to bring the Canadian court system into "disrepute."[4] The 1987 case R. v. Collins attempted to define this. It was ruled that evidence should be excluded if it would render the trial unfair, and furthermore, the more Charter rights are violated, the more courts should have an obligation to exclude the evidence that violated the rights. Often, it is the right to have counsel and the security from unreasonable search and seizure that, when infringed, lead to evidence being excluded.

"Notwithstanding" Clause
The addition of the Charter to the Constitution was a radical change in Canadian constitutional law. To assuage concerns that the courts were being given too much power to rewrite and reinterpret legislation, s.33 was included in the Charter. Under this provision, legislation can be made immune from being challenged as a violation of certain Charter rights. These include freedom of expression, religion, assembly, association, and freedom from discrimination, as well as criminal rights. Legislation can operate "notwithstanding" these rights for renewable terms of five years. This clause has rarely been used in practice.