A. The Nature of Charter Rights

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

Page 47

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

Page 48

· democratic rights, including the right to vote, the guarantee of regular elections, and annual parliamentary 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, particularly those pertaining to the criminal process, such as the rights to counsel, 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 general 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 protection and equal benefit of the law;5and

· language rights.6These 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 limits prescribed 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, international documents, such as the International Covenant on Civil and Political Rights, expressly acknowledge that rights can be limited to protect other individual rights or broader community interests.

The Charter also includes a number of distinctive interpretive provisions, including a clause ensuring that there will be no derogation from Aboriginal rights by the Charter in section 25,7a 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, discussed in Chapter 17, as well as a mechanism to override certain Charter rights, found in section 33, which is discussed in Chapter 5.

The rights included in a constitutional document reflect the concerns prevalent at the time of drafting. To the extent that the goal of the constitution is to curtail majority tyranny and government excesses,

Page 49

the rights protected will tend to lie in those areas where there has been evidence of problems - for example, government measures against unpopular expression or the practices of some religions. Similarly, to the extent that the constitution expresses an aspiration to greater equality in society, the listed grounds of discrimination may reflect historical or contemporary bases for unfair treatment against individuals and groups. The Canadian Charter, for example, was one of the world’s first to include disability, while South Africa’s new constitution, in force since December 1996, goes further to include sexual orientation in its equality guarantee.8The emphasis in many countries has been on a liberal approach that protects the individual from certain...

To continue reading