Interpretation of the Charter of Rights and Freedoms

• Author: Robert J. Sharpe, Kent Roach
• Pages: 47-64

47

CHA PTER 3

INTERPRETATION

OF THE

CHARTER OF

RIGHTS AND FREEDOMS

Entrenching rights in the constitution does not end the debate about

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

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

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

tutional text, often maintaini ng that the words of the document should

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

argue for a more “progre ssive” approach that w ill 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 proces s.

In t his chapter, we outline the structure of the Canadian Charter

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

interpret ation.

A. THE NATUR E OF

CH ARTER

RIGHTS

The Canadian Charter identif‌ies and enshrines six broad categories of

right s:

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

opinion, expression, assembly, and associat ion;1

1 Section 2.

THE CHARTER OF R IGHTS AND FR EEDOMS48

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

lar elections, and annual parliamentar y sessions;2

• mobilityrightstoenterandleavethecountryandtherighttoreside

in and gain a livelihood in any province;3

• legal rights, part icularly those pert aining to the cr iminal process,

such as the rights to counsel, protection against unreasonable search

and sei zure, habeas corpus, trial within a re asonable time, a nd 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 t hereof except in accordance with principles of

fundamental justice;4

• therighttoequalitybeforeand underthelawa ndtotheequa l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 t he Charter, which states that the Charter “guarantees the

rights and freedoms set out in it subject to such reasonable limits pre-

scribed by law as can be demonstrably justif‌ied in a free and democratic

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

human rights documents rather than the American constitution. While

the American document sets out the rights as if they are absolute, inter-

national documents, such as the International Covenant on Civil and Pol-

itical Rights, expressly acknowledge that rights can be limited to protect

other individual right s or broader community interests.

The Charter also includes a number of distinctive interpretive pro-

visions, including a clause ensuring that there w ill be no derogation

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

to preser ve and enhance our multicultural heritage in section 27, and

a further guarantee of gender equality in section 28. A lso signif‌icant

to interpretive issues is the specif‌ic remedial cl ause in s ection 24, dis-

cussed in ch apter 17, as well as a mech anism to overr ide certain Char-

ter rights, found in section 33, which is discu ssed 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 the

constitution is to curtail majority t yranny and government excesses,

2 Sections 3 –5.

3 Section 6.

4 Sections 7–14.

5 Section 15.

6 Sections 16–23.

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

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