The Legal Profession and Dispute Resolution
Week 3 Lecture 4
The Canadian Constitution and Charter
• Constitutional law is entrenched legislation, meaning that it can only be changed by a specific
amending, formula (only if there is agreement from the federal government and every provincial
• Every province has a veto.
Constitution Act, 1867
• Also known, before 1982, as the British North American Act or BNA Act
• Unities the thenexisting four provinces of British North America as the Dominion of Canada
• Sets out the basic structure of Canada government
• Divides powers between the federal and provincial levels.
What was Missing?
• No Amendment Formula
▯The Constitution Act, 1867 was an imperial statue, and acould only be changed by act of the U.K.
parliament in Westminister
• No Individual rights
• Limited constitutional recognition for the rights of native peoples
Constitution Act, 1982:
• Added Amendment formula (Patriation of the constitution or REpatriation)
• Added Charter or Rights and Freedoms
• Added an explicit constitutional recognition of treaty rights for aboriginal peoples of Canada
* was not accepted by Quebec and was adopted over Quebec’s objections.
Override Clause: the ability to appease the provinces and to say that they were not really losing all of their
• Section 1: Rights Guaranteed subject to reasonable limitation
• Section 2: Fundamental Freedoms
• Section 35: Democratic Rights
• Section 6: Mobility Rights
• Section 714: Legal Rights
• Section 15: Equality Rights
• Section 1623: Language and Minority Language Rights
• Section 24: Enforcement Provisions
The Limitations Clause of the Charter:
• Section 1 sets out a two part test to determine whether federal or provincial law can override a
constitutional guarantee of protection within the charter
• First, the federal or provincial statues’ limits on rights must be reasonable;
• Second, courts must be satisfied that the limits are demonstrably justified in a free and democratic
society. Charter Controversies:
• Charter set out a new framework for interpreting the law in Canada
• However: not clear about what change this would make in Canadian democracy
• This could only be answered over time.
Criticism of court:
• Charter seemed to move the focus away from democratic institutions like parliament
• Move towards questions of individual rights and thus to the courts.
• Counter argument to parliamentary supremacy:
• There is a core of values to which all Canadian subscribe, enunciated first in the Bill of Rights, and later,
in the Charter.
• This core must be protected at all times, regardless of the whims of legislature.
• Black’s Law Dictionary: “ a philosophy of judicial decisionmaking whereby judges allow their personal
views about public policy, among other factors, to guide their decisions, usually with the suggestion that
adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”
Judicial activism can be seen as a strength, or a draw back that may be abused by judges in power.