Interpretation of the Charter of Rights and Freedoms

• Author: Robert J. Sharpe; Kent Roach
• Pages: 51-70

51

CHAPTER 3

INTERPRETATION OF

THE

CHARTER OF

RIGHTS AND FREEDOMS

Entrenching rights in the Constitution does not end the debate about

the legitimacy of judicia l review. Rather, the debate takes on a dierent

form, revolving around the justif‌ication for various approaches to con-

stitutional interpretation. Some argue for a strict reading of the consti-

tutional text, often mai ntaining t hat the words of the document should

be understood in light of their meaning at the time of drafting. Others

argue for a more “progressive” approach that will allow the content to

adapt to new societal needs and values. Those who take this latter pos-

ition turn to moral philosophy, international human rights norms, or

evolving community values for help in the interpretive process.

In this chapter, we outline the structure of the Canadian Charter

of Rights and Freedoms and then canvass some of the debates about its

interpretation.

A. THE NATURE OF

CHARTER

RIGHTS

The Canadian Charter identif‌ies and enshrines six broad categories

of rights:

• the “fundamental freedoms” of conscience, religion, thought, belief,

opinion, expression, assembly, and association;1

1 Section 2.

THE CHARTER OF R IGHTS AND FR EEDOMS52

• democratic rights, including the right to vote, the guarantee of regu-

lar elections, and annual parliamentary sessions;2

• mobility rights to enter and leave the countr y and the right to reside

in and gain a livelihood in any province;3

• legal rights, particularly those pertaining to the criminal process,

such as the rights to couns el, protection against unreasonable search

and seizure, habeas corpus, trial within a reasonable time, and the

presumption of innocence until proven guilty, as well as a more gen-

eral right to life, liberty, and security of the person and the right

not to be deprived thereof except in accordance with principles of

fundamental justice;4

• the right to equality before and under the law and to the equal pro-

tection and equal benef‌it of the law;5 and

• language rights.6

These rights are both guaranteed and made subject to limitations

in section 1 of the Charter, which states that the Charter “guarantees

the rights and freedoms set out in it subject to such reasonable lim-

its prescribed by law as can be demonstrably justif‌ied in a free and

democratic society.” Thus, the Canadian Charter follows the model of

international huma n rights documents rather than the A merican consti-

tution. Whereas the America n document sets out the rights as if they are

absolute, international documents, such a s the International Covenant on

Civil and Political Rights, expressly acknowledge that rights can be lim-

ited to protect other individual rights or broader community interests.

The Charter also includes a number of distinctive interpretive pro-

visions, including a clause ensuring that there will be no derogation

from Aboriginal rights by the Charter in section 25,7 a commitment

to preserve and enhance our multicultural heritage in section 27, and

a further guarantee of gender equality in section 28. Also signif‌icant

to interpretive issues is the specif‌ic remedial clause in section 24, dis-

cussed in Chapter 17, as well as a mechanism to override cert ain Charter

rights, found in section 33, which is discussed in Chapter 5.

The rights included in a constitutional document ref‌lect the con-

cerns prevalent at the time of drafting. To the extent that the goal of

a constitution is to curtail majority tyranny and government excesses,

2 Sections 3–5.

3 Section 6.

4 Sect ions 7–14.

5 Secti on 15.

6 Sections 16–23.

7 Aborigin al rights are recogni zed and armed in s 35 of the Constitution Act,

1982, whic h does not form part of the Charter.