Week 7, Chapter 19
Charter of R & F
Chapter 19 - The Charter of Rights & Freedoms
Civil liberties consist of rights & freedoms that individuals enjoy beyond the reach of the government or
the state. Such rights & freedoms are an integral part of a democratic political system & represent
territory into which the gov is not allowed to enter as it makes & enforces public policy for a society.
Lec Notes: What are Rights & freedoms?
Right to fair & equal treatment by the law; conditions necessary to ensure individual freedom.
Positive Rights: Obligate the state provide specific goods, services, benefits & resources.
Typically oblige action. Ex: Right to Counsel (when arrested), Right to Safety, Right to a min.
standard of living → supporters of positive rights defend welfare programs. Positive rights are 2d
or 3 generation of rights.
Negative Rights: Provide protections that prevent the state from acting in certain ways or which
limit certain actions. Typically oblige inaction. Ex: Right to own property, freedom from slavery,
freedom of religion. First order of rights → most basic rights. Most of the rights in our Charter
are negative rights.
Defining & Protecting Rights & Freedoms
R & F are classified into 4 categories:
i)Political Liberties: including the fund freedoms of speech, press, assembly & religion.
ii)Legal Rights: include the procedural rights of a person suspected or accused of committing a
crime, a liberty including that person's right to legal counsel, a presumption of innocence, bail & a
iii)Equality Rights: freedom from discrimination on such bases such as gender, race, religion or age.
iv)Economic Rights: right to own property. Recognized in law as well as in the Can Bill of Rights
but not enshrined in the Charter. The other 3 categories are enshrined.
Political systems that value such rights & freedoms have adopted 2 methods to protect them.
British Approach: make Parliament supreme but on the presumption that neither the legislature nor
the executive would infringe civil liberties b/c both are held in check by public opinion, tradition, the
pol culture & self-restraint.
Courts can't overturn legislation in Britain - don't have the power of judicial review. They do have
wide judicial discretion in the interpretation of laws. Judicial precedents accumulated into the
common law offer protection against arbitrary government action. So does the rule of law, which
requires that every official act be based on law.
American Approach: derived in reaction to an imperial gov that did encroach on colonial liberties, is
to provide for a written statement of civil liberties (civil rights) in a constitutional Bill of Rights.
If legislation is passed or the executive takes action that is felt to violate a person's rights, such acts
can be challenged in the courts. It is up to the courts to determine whether the gov has infringed civil
rights as defined in the Constitution. The courts have the power of judicial review & can overturn
offensive legislation or executive acts.
Canadian Approach: Hybrid. Parliamentary supremacy but with judicial review (only on
jurisdictional matters prior to Charter).
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Week 7, Chapter 19
Charter of R & F
En Route to the Charter
Canada inherited the British system based on parliamentary restraint within parliamentary supremacy.
Canadians' civil liberties depended on politicians voluntarily respecting them or protecting them in
Adoption of federalism → Canada possessed 2 supreme legislatures : 1 in Ottawa & another in the
provinces, each operating within its own constitutional jurisdiction.
Federalism allowed the courts to engage in judicial review in the sense of invalidating federal or
provincial legislation that violated the division of powers.
Fed also led to judicial review in the protection of r & f. That is, if the courts could show that either
level of government infringed civil liberties in the process of exceeding its jurisdiction in terms of the
division of powers, then the courts could strike down the law.
Implied Bill of Rights: the notion that even before the enactment of the Canadian Bill of Rights or
the Charter of R & F, the Constitution, especially in its preamble, contained an implied bill that
protected civil liberties to some extent.
3 principal cases of judicial protection of such rights & freedoms in the period before 1960:
1) Freedom of the press was at issue in the 1938 Alberta Press Bill case. The Alberta legislation
allowed the government to order newspapers to reveal the sources of unfavourable comment &
gave it the right to respond to criticism. The courts found this legislation invalid b/c it was an
infringement of the federal criminal law power.
2) 1950s- the freedom of religion of Jehovah's Witnesses in Quebec was at stake, such as in
requiring them to obtain permission from the police before they could distribute their literature
on the sidewalk.
3) 1957- the S.C disposed of Premier Maurice Duplessis's Padlock Law on the same grounds. This
law had given the premier & attorney general the power to padlock any building that Duplessis
considered was being used for the propagation of communism & bolshevism, but having left
these terms undefined, it was used against opposition groups of any kind.
Padlock Law: An infamous law passed by Premier Maurice Duplessis in Quebec in the late 1930s
that allowed him to place a padlock on any building that was being used for purposes of opposing the
Violations of civil liberties that didn't also offend the division of powers or rule of law gave the courts
little discretion. Ex: 1903 - case that concerned denial of the vote to Asians in B.C provincial
elections → courts ruled that such electoral matters were entirely within the jurisdiction of provincial
Before 1960, both federal & provincial politicians were occasionally guilty of violating civil liberties.
This fact & the realization that the courts could rarely be counted on to invalidate such actions
persuaded John Diefenbaker to enact the Canadian Bill of Rights in 1960 (inaugurated the 2 era in
the protection of rights & freedoms).
Canadian Bill of Rights: An act of the Canadian Parliament passed in 1960 that outlined the basic
civil liberties of Canadians but whose defects caused judicial confusion & limited the bill's
The document's apparent aim was to allow the courts to invalidate legislation that they found to
conflict with the Bill of Rights, but this aim was not clearly expressed. The courts were never certain
whether they had been given this power or not.
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Week 7, Chapter 19
Charter of R & F
Other gaps in the bill:
1) it applied only to the federal gov, not to the provinces
2) it allowed legislation to be passed that overrode the bill, as long as this was acknowledged ( a
3) as an ordinary piece of legislation, the bill could be amended in the routine way; & that it was
superseded by the War Measures Act. The courts made limited use of the Bill of Rights.
The Bill was more useful in clarifying legal rights & was referred to in several cases to fill in gaps
and to understand what was meant by the "right to counsel", "the right to a fair hearing".
The Charter of Rights & Freedoms
Recognizing the limitations & ambiguities of the Can. Bill of Rights & wanting to incorporate new
kinds of rights into the Constitution, several politicians attempted to improve it. Ironically, in the
midst of this quest, Trudeau invoked the War Measures Act in 1970 & used it not only to fight the
terrorist FLQ but also to encroach on the freedom of speech of innocent, nonviolent Quebec
separatists. W/ the adoption of the Charter, he accomplished this objective.
Trudeau wanted to remedy the deficiencies in the Bill of Rights. He was also determined to entrench
official bilingualism, as well as official minority -lang education rights across the country, in an effort
to undercut Quebec's claim that it represented French Canada.
The individual rights of Canadians would be strengthened at the expense of group rights, such as
those of Quebec.
Moreover, Trudeau hoped to counter centrifugal forces throughout the land & pressures for general
decentralization to the provinces by creating an instrument that the courts could use to cut down self-
serving provincial laws. The Charter would serve to increase the allegiance of all citizens to the
Strengths: broader in scope, applies equally to fed & provincial govts, harder to amend (entrenched)
and states very clearly that the courts are to invalidate any gov actions or legislation that they feel are
in conflict w/ the provisions of the Charter.
the rights articulated in the Charter are not absolute. Sec 1. indicates that such rights are subject
to "such reasonable limits, defined by law, as can be demonstrably justified in a free and
democratic society." The courts are thus allowed to find that although a piece of legislation does
violate certain rights, it is still acceptable according to their def of reasonable limits.
In the areas of fund freedoms, legal rights & equality rights, either level of govt is allowed to
pass legislation contrary to the Charter by means of the notwithstanding clause, sec 33.
The Reasonable Limits Clause - Section 1
The S.C developed guidelines in the Oakes Case → Oakes Test.
1nd the objective of the gov in limiting a right must be pressing and substantial
2 , the means must proportional to that objective. 3 criteria are attached to this 2nd point: the limit
must be rationally connected to the gov objective; it should impair the right as little as is necessary in
order to achieve the objective; & the costs of the impairment to the right must be proportional to their
The S.C has made extensive use of section 1, upholding many laws that it considered to be in
violation of Charter rights but that were saved by being reasonable limits on them.
Ex: 2001 Sharpe case on child pornography → how the court applies the reasonable limits clause.
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Week 7, Chapter 19
Charter of R & F
Fundamental Freedoms - Section 2
Freedom of Religion
W/ respect to freedom of religion, the Supreme Court invalidated the Lord’s Day Act as an
infringement of freedom of religion b/c its restrictions on Sunday activities were clearly related to the
Christian Sabbath & discriminated against other religions.
In 2006 The S.C ruled that Sikh students could carry their (sheathed) ceremonial daggers called
kirpans to school based on freedom of religion and backed up by the Canadian commitment to
Freedom of Expression:
Most controversial was the Sup