Interpretation of the Charter of Rights and Freedoms

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 45-61

CHAP TER 3

INTERPRETATION

OF THE

CHARTER OF

R IGHT S A ND FR EED OM S

Entrenching rights in t he constitution does not end the debate about

the legitimacy of judici al review. Rather, the debate takes on a different

form, revolving around the justi fication for various approaches to con-

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

tutional text, often maintaining th at the words of the document should

be understood in light of their meaning at t he 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 r ights norms, or

evolving community values for help in the inter pretive process.

In this chapter, we outline the st ructure of the Canadian Charter

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

interpretation.

A. NATURE OF

CHA RTER

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

1Section 2.

45

the

charter of r ights and fr eedoms

46

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

lar elections, and annual pa rliamentary sessions;2

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

in and gain a livelihood i n any province;3

• legal rights, particularly those pert aining to the cr iminal process,

such as the rights to coun sel, protection against unreasonable search

and seizure, ha beas corp us, trial w ithin a reasonable time, and the

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

eral right to life, libert y, and security of the person, and the right

not to be deprived t hereof except in accordance w ith principles of

fundamental justice;4

• the right to equality b efore 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 t he 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 human r ights documents rather than the American con-

stitution. While the American document sets out the rights as if they

are absolute, international document s, such as the International Cov-

enant on Civil and Political Rights, expressly acknowledge that rights

can be limited to protect other ind ividual right s or broader community

interests.

The Charter al so includes a number of disti nctive interpretive pro-

visions, including a cl ause ensuring t hat there will be no derogation

from Abor iginal right s by the Charter in section 25,7 a commitment

to preserve and enha nce 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 overr ide certain Char-

ter rights, found in section 33, which is disc ussed in chapter 5.

2Sections 3–5.

3Section 6.

4 Sections 7–14.

5Section 15.

6Sections 16–23.

7 Aborigin al rights are recogni zed and affirmed in s. 35 of the Constitution Act,

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