The Canadian Charter of Rights and Freedoms

• Author: Patrick J. Monahan, Byron Shaw
• Pages: 411-473

411

CHAPTER 13

THE

CANADIAN

CHARTER OF RIGHTS

AND FREEDOMS

A. THE ENACTMENT OF THE

CHARTER

Following the end of the Second World War, there was growing inter-

national support for the concept of constitutionally protecting human

rights. In 1948, the United Nations adopted the Universal Declaration

of Human Rights1 and, over the next few decades, human rights pro-

tection was incorporated in a number of international covenants and

conventions,2 as well as in the domestic constitutions of m any states. In

Canada, this international trend was ref‌lected in the enactment of the

Canadian Bill of Rights in 1960,3 as well as the adoption of human rights

codes at the provincial and federal level.4 However, the Canadian Bill of

1 1948 G.A. Res. 217A (III), U.N. Doc. A/810, at 71.

2 See, for example, th e International Covenan t on Civil and Political Rights, 999

U.N.T.S. 171 and the Internat ional Covenant on Economic, Social a nd Cultural

Rights, 999 U.N.T.S. 3.

3 S.C. 1960, c. 44; R.S.C. 1985, App. III.

4 The f‌irst human ri ghts code was enacted in Sa skatchewan in 1947: see the

Saskatchewan Bill of Rights, 1947, S.S. 1947, c. 35. This was followed by si milar

codes enacted b y the other provinces and, in 1978, the Can adian Human Rights

Act (S.C. 1976–77, c. 33; R.S.C. 1985, c. H-6) was enacted by Parl iament. Human

rights code s are primarily concer ned with prohibiting unl awful discrim ination

in the provis ion of certain goods, ser vices, facilities, or employ ment; as such,

they have a much more res tricted scope than fu ndamental rights doc uments,

such as the Cana dian Charter of Rights and Freedoms, Par t 1 of the Constitution

Act, 1982, being Schedule B to the Can ada Act 1982 (U.K.), 1982, c. 11 [Charter].

CONSTITUTIONA L LAW

412

Rights and the provincial and federal human rights codes were not con-

stitutionally entrenched. Furthermore, the Canadian Bill of Rights was

a federal statute and could not be applied to matters within provincial

jurisdiction. Moreover, the Bill was interpreted in an extremely nar-

row fashion by the judiciary. From 1960 to 1982, claimants invoking

the Canadian Bill of Rights were successful in just f‌ive of the thirty-f‌ive

cases that reached the Supreme Court of Canada. The Supreme Court

found that a provision in a federal statute was inoperative in just one

instance.5

Following his election as prime minister in 1968, Pierre Trudeau

attempted to obtain the support of the provinces for the enactment of

an entrenched charter of rights that would be constitutionally binding

on both levels of government. Trudeau initiated a three-year process of

constitutional negotiations with the provinces that culminated in May

1971 with the drafting of a “Canadian Constitutional Charter,” com-

monly referred to as the Victoria Charter. The Victoria Charter, which

included guarantees for political rights and language rights, was ap-

proved in principle by the premiers of all ten provinces at a meeting

in Victoria on 16 June 1971. All eleven governments were to indicate

by 28 June 1971 whether they approved the draft Charter without fur-

ther amendments and whether they would submit it to their respective

legislatures for approval. While eight of the ten provinces subsequently

approved the draft Charter, Quebec and Saskatchewan were unwilling

to proceed without amendments, which put a temporary end to the

constitutional discussions.

Despite the failure of the Victoria Charter, Trudeau remained com-

mitted to the constitutional entrenchment of a charter of rights. In the

May 1980 Quebec referendum, Trudeau had promised “renewed feder-

alism” in return for a vote against the Quebec government’s proposals

for sovereignty association. When federal-provincial negotiations over

the summer and early fall of 1980 failed to produce a consensus on con-

Human right s codes apply to private as well as publ ic bodies, whereas the Char-

ter applies only to leg islatures and governme nts.

5 R. v. Drybones, [1970] S.C.R. 282 [Drybones]. Although not constitutional ly en-

trenched, the Cana dian Bill of Rights contained a provis ion stating that federal

laws were to be “const rued and applied as not to abrogate, abrid ge or infringe …

any of the right s or freedoms herein recogni zed and declared.” In Drybones, the

Supreme Court relied on t his language to hold that , in cases where provision s

in a federal stat ute were necessarily in con f‌lict with rights protecte d by the Bill,

the offending st atutory provisions were rende red inoperative.

The Canadian Ch arter of Rights and Freedoms

413

stitutional reform, Trudeau introduced a parliamentary resolution in

October 1980, which included a proposal for a charter of rights.6

The proposed charter of rights sparked a f‌ierce political debate over

the 1980–82 period. On one side of the debate were those who argued

that a charter of rights would transfer undue power from elected polit-

icians and into the hands of unelected and unaccountable judges. Pre-

mier Allan Blakeney of Saskatchewan was perhaps the most articulate

critic of an entrenched charter. Blakeney’s concerns over the charter

stemmed from his social democratic principles and the belief that the

state was a positive instrument for achieving social justice and equal-

ity.7 For Blakeney, a charter of rights would expand the authority of

unaccountable and socially conser vative judges, who would thwart the

redistributive goals of the state. Blakeney was particularly troubled by

the American experience with the Bill of Rights during the “Lochner

era” in the early twentieth century, in which the U.S. Supreme Court

rolled back a wide variety of socially progressive statutes.8 For Blake-

ney, the legislature was the appropriate body to balance individual and

collective interests. Blakeney believed that rights are best protected by

Parliament and not by a constitution that is interpreted by the courts.9

In the end, Blakeney was prepared to accept an entrenched charter of

rights only if it included a “notwith standing” clause, which he believed

would permit legislatures to en sure that the courts did not unduly limit

the choices made by elected politicians.10

6 These negotiations are d iscussed in Chapter 5, sect ion C(4).

7 See, generally, D. Greunding, Promi ses to Keep: A Political Biography of Allan

Blakeney (Saskatoon: Western P roducer Prairie Books, 199 0) at 192–96.

8 The Lochner era refers to the per iod from 1905–37, in which the U.S. Supreme

Court held that t he guarantee of “due process of law” i n the fourteenth amend-

ment required cour ts to assess the sub stantive fairnes s of legislation. This era

of substantive due pro cess began with Lochne r v. New York, 198 U.S. 45 (1905),

in which the U.S. Supreme Cou rt struck down a New York statute imposi ng

maximum hou rs of work in bakeries, on the bas is that the statute inter fered

with freedom of cont ract. When the U.S. Supreme Court stuck dow n a number

of New Deal statute s on a similar basis i n the mid-1930s, President Frankli n

Delano Roose velt threatened to “pack the Cour t” with additional appoint ees

more favourable to the gover nment’s position. In West Coast Hotel v. Parrish,

300 U.S. 379 (1937), Lochner and the other subst antive due process case s of that

era were overr uled. Since 1937, the U.S. Supreme Court ha s applied minimal

scrutiny to s ocial and economic legislat ion limiting libert y of contract.

9 R. Sheppard & M. Valpy, The National Deal: The Fight for a Canadian Con stitu-

tion (Toronto: Fleet Books, 1982) at 145.

10R.J. Romanow, J.D. Whyte, & H.A. Leeson , Canada—Notwithstanding: The

Making of the Constituti on, 1976–1982 (Toronto: Carswell/Methuen , 1984) at

197–214. The notwithst anding clause was incor porated in s. 33 of the Charter.