In this chapter, we will be discussing the highest of all Canadian law: the Constitution.

Canada is a constitutional monarchy, which means that it has a monarch (currently King Charles III) as its head of state, but that the powers of the monarch are limited by the “constitution”. Given such constitutional limitations, the monarch’s role in Canada is largely ceremonial and now mostly serves as a symbol of Commonwealth unity and heritage. In its ceremonial role, the monarch or its delegates are tasked with the opening of Parliament and the granting of royal assent to new laws.

On the other hand, the Constitution of Canada stands as the supreme law. The Constitution ensures the rule of law, sets guardrails on the powers of the different branches of government (executive, legislative, and judicial), and determines how the multiple levels of government remain separated and balanced.

One of the more unique features of Canada’s Constitution is that it is composed of two separate constitutional documents, both of which will be discussed: 1) the Constitution Act, and 2) the Charter of Rights and Freedoms.

Canada’s Constitutional Origins

The history of the Canadian Constitution is a complex and evolving story that spans several centuries and involve grants of status from England in 1867 to the repatriation of the Constitution in 1982.

Canada’s first brush with independence was through the passage of the British North America Act (BNA Act); now referred to as the Constitution Act, 1867. The BNA Act was passed by the British Parliament in 1867 and established the Dominion of Canada, bringing together the previously separate colonies Ontario, Quebec, New Brunswick, and Nova Scotia into a federal union.

The drive to a federal union was, in part, borne of concerns around facilitating economic development and improving defense against potential American expansionism. The hope was that by having a unified federal regime it could help reduce political and economic instabilities in the former British colonies.

As the original constitutional document, the Constitution Act is required to do quite a lot of legislative lifting. It establishes the declaration of Canada as a union, the role of the Executive and Legislative branches of government, and the selection of judges for the judiciary.

Our focus on the Constitution Act will be around three broad responsibilities: codifying the supremacy of the Constitution (section 52), allocating responsibility between the Federal and Provincial levels of government (section 91 and 92), and providing a Constitutional amendment process (section 38).

Summary of the Charter

The Charter guarantees certain political/democratic rights of Canadian citizens and civil/legal rights to everyone in Canada. Foundationally, the Charter is designed to protect individuals and groups from government actions that might discriminate against them or limit their freedoms in some important way.

The Charter has a number of provisions that outline the rights and freedoms that are protected including section 2 (fundamental freedoms), section 7 (life, liberty and security of the person), section 8 (unreasonable search and seizure), section 15 (equality). Some of those broad overviews are highlighted in a information circular* created by the Government of Canada:

While this circular provides a useful snapshot of the Charter rights, we will expand on the major Charter sections along with relevant cases below.

Major Sections of the Charter

Section 1

There is no more important section of the Charter than section 1.

Section 1 states as follows:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Accordingly, section 1 codifies that all the rights protected by the Charter are not unlimited and can be overruled or denied, if doing so is a reasonable limit in a free and democratic society.

Ultimately, section 1 of the Charter acknowledges that there may be situations where the government needs to limit certain rights in order to protect other important societal values. An example of this can be seen in the case of hate speech. The Charter guarantees freedom of expression, but the government can pass laws that prohibit hate speech because it can be argued that such speech harms marginalized groups and actually undermines the values of a free and democratic society. Therefore, section 1 attempts to balance individual rights against the greater good of Canadian society.

The determination of “reasonable limits” can often be challenging. One of the seminal cases dealing with section, R. v. Oakes, attempts to craft a legal test to analyze whether limits on individual rights would be considered reasonable. The “Oakes test”, developed in the case, is now used to determine whether a limit on a Charter right is reasonable and justifiable under section 1.

Let’s go back to our example of hate speech. Various levels of government have passed laws prohibiting “hate speech”. Such laws would seemingly violate an individual’s freedom of expression; however, can section 1 work to save those infringing laws? The government must demonstrate that the law in question has a pressing and substantial objective which is to protect individuals and groups from harm caused by hate speech. The means used to achieve that objective is proportional to the ends, meaning the law must be tailored to achieve its objective in a way that is not overly restrictive of Charter rights.

In any future Charter cases, it is virtually guaranteed that section 1 will be raised. Section 1 provides the ability to defend a Charter-violating law as being a reasonable limit. However, the court will be tasked with applying the Oakes test to determine if, in fact, the law is a reasonable limit in a free and democratic society.

Section 2

Section 2 of the Charter states:

2. Everyone has the following fundamental freedoms:

a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.

It is clear that these “fundamental freedoms” are essential to the functioning of a democratic society. The bundle of rights provide individuals with the ability to express themselves, engage in peaceful assembly, and associate with others to pursue common goals or interests. However, recall from our discussion of section 1, that these rights are not absolute and can be subject to reasonable limits. Below is an examination of each of the section 2 rights.

Section 2(a)

Section 2(a) of the Charter guarantees freedom of conscience and religion. This means that individuals have the right to hold and practice their own religious beliefs without interference from the government.

One of the first and most consequential section 2(a) decisions was R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295. The case established that a federal statute, the Lord’s Day Act, which prohibited commercial activities on Sundays, violated the freedom of religion protections under section 2(a).

In Big M, the court held that the purpose of the Lord’s Day Act was to compel the observance of the Christian sabbath and therefore, infringed upon freedom conscience and religion. Accordingly, the SCC struck down the law as being unconstitutional.

Section 2(b)

Section 2(c)

Section 2(c) of the Charter guarantees freedom of peaceful assembly. This means that individuals have the right to gather together in a peaceful manner for a common purpose, without interference from the government. In many cases, claims under 2(c) are dove-tailed with those of 2(b); the reason is that, for many, the purpose of assembly is to communicate expressive messages or content.

Section 2(d)

Section 2(d) of the Charter guarantees freedom of association. This means that individuals have the right to join and participate in organizations of their choosing without interference from the government. This association includes the right to form and join trade unions, political parties, and other organizations.

One major case that dealt with freedom of association under section 2(d) is the SCC decision in Lavigne v. Ontario Public Service Employees Union, [1991] 2 SCR 211. In this case, the court considered whether public sector employees have the constitutional right to form a union under the Charter. The court held that public sector employees have the right to form a union and engage in collective bargaining under section 2(d) of the Charter.

Section 7

Section 7 of the Charter states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

While perhaps not completely understood back in 1982, section 7 has become one of the most important sections in the Charter for making creative and purposeful arguments. Ultimately, the section protects individuals from arbitrary state actions that infringe on their life, liberty, or security of the person – all of which are broad categories and can encapsulate multiple rights.

Over time, section 7 has had significant impacts. Its language deemed many government activities as unconstitutional such as:

• Capital punishment – Because everyone has the constitutional “right to life”, capital punishment or the death penalty is unconstitutional. Therefore, a government could not impose the death penalty without violating section 7.

As you can see, section 7 affords a high degree of flexibility in its meaning and has resulted in varying and wide-reaching constitutional challenges.

Section 8

Section 8 of the Charter states:

everyone has the right to be secure against unreasonable search or seizure.

This means that the government must have a valid reason for searching or seizing an individual’s property or personal belongings, and must follow proper legal procedures when doing so.

Section 8 has had an enduring legacy on the limits of police search powers. The section has ensured that the government cannot randomly search or seize an individual’s property without a clear and compelling justification. Since the passage of section 8, a few guiding principles have emerged about police search powers:

Police officers must have a warrant or reasonable grounds to believe that a crime has been committed before they can search a person’s home or car.
Evidence obtained through an illegal search or seizure may not be used in court against the individual.

It’s important to note that section 8 does not mean that individuals are immune to search or seizures. It means that there must be reasonable grounds for the search or seizure.

Section 10 

Section 10 of the Charter guarantees certain rights when individuals are arrested or detained by the police. Section 10 states:

Everyone has the right on arrest or detention:
a) to be informed promptly of the reasons therefor;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

These rights include the right to be informed of the reasons for the arrest, the right to retain and instruct counsel without delay, and the right to be informed of those rights. One of the aims of the section is to ensure that individuals who are arrested or detained by the police are aware of their rights and are able to exercise them including the right to access legal representation in a timely manner.

A few of the main legal protections under section 10 are that:

• a person who is arrested must be informed of the reasons for their arrest and the charges against them;
• a person who is arrested has the right to contact a lawyer and to have a lawyer present during questioning;
• a person who is arrested and detained must be brought before a judge without unreasonable delay to determine whether their detention is lawful; and
• a person who is arrested has the right to be informed of their rights, including the right to counsel, and to have those rights explained to them in a language they understand.

If the police fail to respect these rights during the arrest and detention process, the accused’s case may be thrown out on the grounds that their Charter rights have been violated.

Some legal advocacy organizations throughout Canada have created sample scripts of how to respectfully assert your Charter rights when police are involved. Here is an example that has been created by Nishnawbe-Aski Legal Services in Thunder Bay:

Section 11

Any person charged with an offence has the right:

a) to be informed without unreasonable delay of the specific offence;

b) to be tried within a reasonable time;

c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

Section 15

The Charter would not have been complete without a provision upholding the fundamental tenet of equality. Section 15(1) states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

This section guarantees that all individuals in Canada are treated equally under the law, regardless of their personal characteristics.

The goal of section 15 is to ensure that everyone has an equal chance to participate in society, regardless of their background; it protect individuals from discrimination and helps to promote a fair and just society.

There have been numerous cases brought on grounds that the government or a government actor acted in a discriminatory manner. The first decision which went to the SCC on section 15 grounds was Andrews v. Law Society of British Columbia, [1989] 1 SCR 143.  In the case, Mark Andrews, a lawyer from Britain sought to constitutionally challenge a rule which stated only Canadian citizens were permitted to join the Bar (allowing them to practice law). Andrews held that this governmental law (through a statute called the Barristers and Solicitors Act) violated his section 15 equality rights. The SCC ultimately held that restricting Andrews’ admission to the Bar (and the legal requirement for citizenship generally) was a violation of the Charter’s section 15 equality protections.

Section 33

33(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under section (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under section (1).

(5) Section (3) applies in respect of a re-enactment made under section (4).