Blog Series: Navigating the Canadian Human Rights Landscape – The Charter

April 2017

This year marks the 35th anniversary of the Canadian Charter of Rights and Freedoms. For the occasion, we have put together a brief overview of this foundational piece in the Canadian human rights landscape, and its place among other human rights laws.

While the existence of the Charter and federal, provincial and territorial human rights laws may appear redundant, these reflect the constitutional division of power in Canada’s federal system.

The Canadian Charter of Rights and Freedoms, “the Charter”, was established in 1982, by the Constitution Act. The Canadian Constitution sets out the powers of the federal and provincial governments. It is the “supreme law of Canada”. All other laws in Canada must be consistent with the Constitution and the associated parts. As part of the Constitution, therefore, human rights were given Constitutional protection under the Charter, thereby elevating human rights legislation to a quasi-constitutional status.

Federal and provincial legislation focus on anti-discrimination and apply to public and private individuals, organizations, businesses or government bodies. The federal Canadian Human Rights Act, for example, applies to federal government departments and agenciesCrown corporations, and federally regulated businesses. We will look at the application of human rights legislation further in our next post of this series.

The Charter, in comparison, generally applies to relations between governments (Parliament, provincial legislatures and federal and provincial governments) and the public (section 32).

The rights and freedoms set out in the Charter, are identified as those necessary for a free and democratic society, and include:

  • The freedom of conscience and religion (i.e. freedom to have, or not, a religion or belief);
  • The freedom of expression (e.g. freedom of the media);
  • The freedom of peaceful assembly (e.g. to peacefully protest) and association (e.g. freedom to join a trade union);
  • Recognition of Canada’s multicultural heritage;
  • Recognition and protection of the official languages (for English and French);
  • Recognition and protection of minority language and education rights (also for English and French)
  • Equality between sexes (male and female);
  • Democratic rights (i.e. right to vote in elections);
  • Mobility rights (i.e. the right live and seek employment anywhere in Canada);
  • Legal rights (i.e. the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice);
  • Aboriginal and treaty rights; and
  • Equality rights (i.e. the right to not be discriminated against).

The grounds of discrimination set out (referred to as “enumerated”) in the Charter under equality rights (section 15), include race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

This is not an exhaustive list, as discrimination can be found on other characteristics similar to the grounds listed in the Charter (non-enumerated, analogous grounds). For example, sexual orientation was recognized as an “analogous” ground under the equality rights set out in the Charter. Unlike the approach towards grounds of discrimination in the Charter, for human rights legislation the list of grounds are intended to be exhaustive.

Aboriginal and treaty rights are also given constitutional protection. Under section 25 the Charter cannot be interpreted as revoking or detracting from Aboriginal and treaty rights recognized by the Royal proclamation of 1763 or from land claims settlements. Further to this, section 35 of the Constitution, which stands outside of the Charter, confirms existing Aboriginal and treaty rights. For more information on Aboriginal and treaty rights, start here for an initial overview.

An additional exception is the “notwithstanding clause”, under section 33. This clause gives Parliament or a provincial legislature the ability to pass legislation inconsistent with a specific provision of the Charter. This can only be applied to certain provisions – sections 2, 7, and 15 – (fundamental freedoms, life, liberty and security of person, and equality rights). The limit imposed expires after five years, unless re-enacted. Here is more information on the history and use of the notwithstanding clause.

An important and complex aspect of both Charter rights and freedoms, and those set out in human rights legislation, is that these rights are not absolute. The “notwithstanding clause”, under section 33 of the Charter, gives Parliament or a provincial legislature the ability to pass legislation inconsistent with a specific provision of the Charter.

Reasonable limits are also set out in law to balance competing rights. For example, the limits placed on free speech (the freedom of expression) protect against the incitement of hatred. When a violation of a Charter right or freedom is established, a court must determine if it is reasonable and justified. For human rights legislation, similar balancing requirements exist to ensure that discriminatory practices, if found, are justifiable.

In our previous blog post, we presented a general overview of the federal, provincial and territorial legislated human rights institutions in Canada, which are mapped out in the Canadian Human Rights Institutions Interactive Map. For the next installment of this blog series, we will look at the different human rights commissions and tribunals across Canada.

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