The Canadian Charter of Rights and Freedoms: Structure and Application

• Author: Patrick J. Monahan/Byron Shaw/Padraic Ryan
• Pages: 409-449

409

CHA PTER 13

THE

CANADIAN CHARTER

OF RIGHTS AND

FR EEDOMS

: STRUCTURE

A ND A PPLIC ATION

A. THE ENACTMENT OF THE

CHA RTER

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

national support for the concept of constitutionally protecting huma n

rights. In 1948, the United Nations adopted the Unive rsal Declaration

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

tection was incorporated in a number of inter national covenants and

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

Canada, thi s 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, the In ternational Covenan t on Civil and Political Rights, 999

U.N.T.S. 171 and the Inter national Covenant on Econo mic, Social and 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 follo wed by similar

codes enacted b y the other provinces and, in 1978, the Cana dian Human Rights

Act (S.C. 1976 –77, c. 33; R.S.C. 1985, c. H-6) was enacted b y Parliament. 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 rest ricted 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 LAW410

Rights and the provincial and federal human r ights codes were not con-

stitutionally entrenched. Furt hermore, the Canadian Bill of Rights was

a federal statute and could not be applied to matters withi n provincial

jurisdiction. Moreover, the Bill was interpreted in an extremely narrow

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

Canadian Bill of Rights were successful in just f‌ive of the thirt y-f‌ive cas es

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

that a provision in a federal stat ute was inoperative in just one instance.5

Following his election as prime m inister 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 proce ss of

constitutional negotiations with the provinces that culmi nated in May

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

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

cluded guarantees for political r ights and language rights, was approved

in principle by the premiers of all ten provi nces at a meeting in Victoria

on 16 June 1971. All eleven governments were to indicate by 28 June

1971 whether they approved the d raft Charter w ithout furt her amend-

ments and whether they would submit it to their respective legislatures

for approval. While eight of the ten province s subsequently approve d

the draft Charter, Quebec and Sa skatchewan were unwilling to proceed

without amendments, which put a temporary end to the constitutional

discu ssions.

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 federal-

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

sovereignty a ssociation. When federal-provinci al negotiations over the

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

tutional reform, Trudeau introduced a parliament ary resolution in Octo-

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

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 constitutionally

entrenched, 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 statute we re necessarily in conf‌l ict with rights protected b y the Bill, the

offending stat utory provisions were rendere d inoperative.

6 These negotiations are di scussed in Chapter 5, Sect ion C(4).

The Canadian Cha rter of Rights and Freedoms: Struct ure and Application 411

The proposed charter of rights sparked a f‌ierce political debate over

the 1980–82 per iod. 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 ha nds of unelected and unaccountable judges. Pre-

mier Allan Blakeney of Sa skatchewan was perhaps the most articulate

critic of an entrenched char ter. 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-

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

unaccountable and socially conservative judges, who would thwart the

redistributive goals of the state. Blakeney was particula rly troubled by

the American ex perience with the Bill of Right s during the “Lochner

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

rolled back a wide variety of socially progressive statutes.8 For Blakeney,

the legislature was t he appropriate body to balance individual and col-

lective interests. Blakeney believed t hat 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

Blakeney was not the only premier to expres s concerns about the in-

creased judicial power associated with an entrenched ch arter. Manitoba

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

Blakeney (Saskatoon: Western P roducer Prairie Books, 1990) at 192–96.

8 The Lochner era refe rs to the period 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 hour s of work in bakeries, on the basi s that the statute interfer ed

with freedom of cont ract. When the U.S. Supreme Court str uck down 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 appointe es

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

300 U.S. 379 (1937), Lochne r and the other substant ive due process cases of that

era were overr uled. Since 1937, the U.S. Supreme Cour t has applied minima l

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 Cana dian Constitu-

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

10 R .J. Roma now, J.D. Whyte, & H.A. L eeson, Canada — Notwithst anding: The Mak-

ing of the Constitution , 1976–1982 (Toronto: Carswell/ Methuen, 1984) at 197–214.

The notwithst anding clause was in corporated in s. 33 of the Charter. The role

and signif‌ic ance of the notwithsta nding clause is dis cussed in Section C(4),

below in thi s chapter.