Introduction
The Charter of Rights and Freedoms expanded the powers of the judicial branch, replacing the not so effective statute called Bill of Rights, validating courts’ unneglectable presence in the legislative process with greatly empowered judicial review. This article examines the interactions and dialogues on the Charter of Rights and Freedoms between the judiciary and the legislatures in Canada, explains Section 1 limits on Charter rights and Section 33 of Legislative Override, explores some forms of non-constitutional protection of individual rights, and ultimately tries to prove why the courts have adequately protected rights in Canada despite certain imperfections.
Judicial Review and Dialogue
The courts in Canada have been protecting the Charter rights extensively by both defining expansively what the rights are, and influencing the legislatures’ agendas and directions. The handiest tool is the courts’ privilege of Judicial Review.
Judicial Review stands for the process under which the courts have the right to review all actions of both the executive and legislative branch. Courts in Canada, therefore, have the right to invalidate laws that are not compatible with a higher authority, such as the Constitution Act of 1982.
Judicial Review existed long before the Charter of Rights and Freedoms. Professor Robert Sedler of Wayne State University noticed this difference between the Judicial Review in Canada and the United States, stated that “the legitimacy of judicial review was built into the Canadian constitutional system from the very beginning. Canadian courts did not need a case analogous to Marbuy v. Madison to establish their authority”. The Charter of Rights and Freedoms greatly expanded the scope of judicial review by entrenching individual rights in the constitution, making these rights inalienable principles of the law. (Sedler, 1198)
If we were to believe constitutional scholar Peter Hogg’s interpretation of the judging pattern of the Supreme Court, then the conclusion would be that the Supreme Court has been defending Charter rights in the broadest way possible without being outright unreasonable. (Hogg, 722) Hogg is convinced that purposive interpretation is consistent throughout all cases that invoked Charter rights since early cases of Hunter v. Southam (1984) and R. v. Big M Drug Mart (1985). This means they didn’t confine the rights word by word in the Charter, but instead expanded or changed the scope of the rights to (a) better fit the original purpose of the Charter and (b) better fit a changing society. (Hogg, 724-725)
Peter H. Russell of the University of Toronto seconds that. The typical Charter case will focus on the so-called “periphery” of the Charter rights, the borderline space where the exact meaning of the right is unclear and where there can be conflicting opinion as to what can be considered violation of the right. (Russell, 30-54)
This kind of judicial activism is reflected in multiple cases that made transformative changes to certain categories of civil rights protection. In Supreme Court decision of R v Morgentaler (1988), the abortion division of the Criminal Code was declared unconstitutional under section 7 of the Charter, while women’s right to choose is not directly listed in Section 7 as a constitutional right.[i] In Supreme Court decision of Vriend v Alberta (1998), the omission of protection of homosexual people in Alberta’s Alberta Individual Rights Protection Act was declared unconstitutional under Section 15 of the Charter because the Section 32 determining the scope of the Charter does not limit its effect on positive actions. [ii]
Given the Supreme Court’s absolute authority and tendency towards a more expansive explanation of Charter rights, their influence in the process of legislation is also palpable. The type of influence the Supreme Court has on the direction and methods of the legislative branch can be viewed as a type of outside advocacy through a dialogue and interaction between themselves. Peter Hogg and Allison Bushell of Osgoode Hall Law School believe that with every judicial review, the legislatures respond with different modifications or a new version of the law, and what the Supreme Court is good at doing is forcing a necessary into the agenda of a reluctant Parliament, subsequently encouraging them to make reasonable changes. (Hogg & Bushell, 80)
There is usually an alternative law that is available to the legislative body and that enables the legislative purpose to be substantially carried out, albeit by somewhat different means. Moreover, when the Court strikes down a law, it frequently offers a suggestion as to how the law could be modified to solve the constitutional problems. (Hogg & Bushell, 80)
Hogg and Bushell present R. v. Duarte (1990), R. v. Wong (1990), and R. v. Wiggins (1990) as examples of dialogue between the Supreme Court and the Parliament, three Supreme Court decisions ruling electronic surveillance at that time was unnecessary search or seizures. Later the Parliament responded by amending the Criminal Code, re-legitimizing this practice by adding a prerequisite of a warrant. No more constitutional infringements and all legal problems solved. (Hogg & Bushell, 89-90)
After more than three decades of judicial activism and heavy influence on the legislative branch, it is not fair to claim that the Supreme Court treated the Charter of Rights and Freedoms in a restrictive way. By extending literal rights listed in the Charter to derivative rights in both court cases and in legislations, the Supreme Court has been effective in expanding human rights.
Certain Limits to Charter Rights.
All visible restraints on Charter rights come from Section 1 (reasonable limits) and Section 33 (legislative override) of the Charter of Rights and Freedoms. [iii]
Section 33 grants the Parliament and all legislatures the power to declare a notwithstanding clause, thus effectively circumvent Judicial Review based on Charter rights. Hogg and Bushell think that Section 33 is practically dead “because of the development of a political climate of resistance to its use”, and only in Quebec is it politically acceptable to invoke. (Hogg & Bushell, 83)
One of the reasons why Section 33 is hard to invoke is because of its restrictive nature. It can only remain in effect for five years. After it expires, it needs to be re-enacted. Also, the notwithstanding clause can only be used in a piece of legislation that they have the authority to enact. Supreme Court ruled Alberta’s Bill 202 (2000) amendment to Alberta’s Marriage Act unconstitutional in Reference re Same-Sex Marriage even a notwithstanding clause was included, on the ground of defining marriage is an exclusive power belonging to the Parliament of Canada, therefore finding the legislation ultra vires (beyond the powers). [iv] [v]
Professor Kent Roach of the University of Toronto disagrees. Roach believes Section 33 continue to exist as a tool to promote dialogue between the courts and legislatures, deeming it “not only as a means for Parliament to ‘reinstate’ policies that have been overturned by the court but as a means to “assert its equal authority to interpret the Charter.” (Roach, 492) But given the scarcity of Section 33 challenges, Section 1 restraints are significantly more relevant.
Section 1 states “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.” Therefore, defining what types of limits are “reasonable” became the challenge. [vi]
The Supreme Court confined it in very strict definitions through R. v. Oakes (1986), R. v. Stillman (1997) and R. v. Grant. (2009) for criminal cases and evidence collection.[vii] [viii] [ix]The latest Supreme Court explanation on whether an evidence obtained by a Charter breach should be admitted is the Grant Test from R. v. Grant, which consists of three parts: “(a) Seriousness of the Charter-Infringing State Conduct; (b) Impact on the Charter-Protected Interests of the Accused; and (c) Society’s Interest in an Adjudication on the Merits.” [x]
Through all these efforts, we can see how the Supreme court set up all these criteria striving to minimize the effect of Charter breaches of any sorts. Some kinds of rational breaches are necessary for the government and society to function properly. With the protection of these criteria, the courts can make sure these breaches are rational and non-excessive.
Non-Constitutional Protection of Rights
Sedler thinks that not all rights protection in Canada is related to the Charter. Due to our unitary court system, Canadian courts call interpret all laws from municipal to federal. (Sedler, 1203) And just like the United States, Canadian courts can interpret all those to avoid constitutional questions. This is a matter of circumventing risks of reaching beyond due powers. the Supreme Court of Canada has stated, “If words in a statute are fairly susceptible of two constructions, of which one will result in the statute being intra vires (within the powers), and the other will have the contrary result, the former is to be preferred.” (Sedler, 1204)
For example, in Samur v. City of Quebec, the Supreme Court of Canada held that a municipal law prohibiting the distribution of literature without the police chief’s permission could not be invoked against Jehovah’s Witnesses who sought to distribute religious literature. One of the grounds for the decision was that the distribution of religious literature did not fall within the law’s prohibition. (Sedler, 1204)
Sedler also considers Ultra Vires for authorities and Common Law (Decisions based on precedents) to be hand tools to protect civil rights while the Charter is the last resort. (Sedler, 1205) Sedler also believes that the two-tier court system in the United States leaves them with less room to protect individual rights on non-constitutional grounds.
Noticeable Flaws
Lack of economic and social right protection from the Charter and the existence of Section 33 are two of the flaws in the courts’ protection of human rights. This list is apparently not exhaustive.
Professor A. Wayne MacKay of Dalhousie University is concerned that the Charter has very small implications on economic and social rights and pays most of its attention to civil and political rights. United Nations Committee on Economic Social and Cultural Rights in its 1998 Observations of Canada’s performance under the International Covenant on Economic, Social and Cultural Rights, expressed concerns over Canada’s record on social and economic rights. It urged all governments, legislatures and courts to “expand protections in human rights legislation […] to protect poor people in all jurisdictions from discrimination because of social or economic status.” (MacKay,38)
Only Quebec, New Brunswick and Northwest Territories expressly include social and economic status within their human rights legislation. MacKay suggests that all courts define Section 7 and Section 15 in a more expansive way to make up for the blank on the federal level.
The problem of Section 33 involves Ford v. Quebec (1988), a Supreme Court decision that ruled Quebec Bill 101, a bill banning bilingual signs in Quebec, violated Section 2 of the Charter. One year later, the Liberal government of Quebec passed a similar ban again with a notwithstanding clause. The type of violation of freedom of speech is considered egregious in any liberal democracy. The very fact that this section remains an option to the Parliament and provincial legislatures is still disconcerting. [xi]
Conclusion
After years of judicial activism, purposive interpretation of the Charter and dialogue between the courts and the legislatures, legal protection of individual rights has drastically expanded from how people interpreted the Charter back in 1982. And though Section 1 and Section 33 remain, courts’ decisions and the change in political atmosphere ensure minimal violation of rights listed in the Charter. Some imperfections and flaws still very much exist, but still, the judicial branch here in Canada has been, without a doubt, doing the best it could to protect the Individual Charter rights of the Canadian people.
Works Cited
Hogg, Peter, W. and Bushell, Allison, A. “THE CHARTER DIALOGUE BETWEEN COURTS AND LEGISLATURES (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All).” 35 Osgoode Hall L. J. (1997) 75-124.
Roach, Kent. “CONSTITUTIONAL AND COMMON LAW DIALOGUES BETWEEN THE SUPREME COURT AND CANADIAN LEGISLATURES.” THE CANADIAN BAR REVIEW Vol.80 (2001). 481-533.
MacKay, A., Wayne. “SOCIAL AND ECONOMIC RIGHTS IN CANADA: WHAT ARE THEY AND WHO CAN BEST PROTECT THEM?” Canadian Issues (Fall 2007); 37-41.
Sedler, Robert, A. “Constitutional Protection of Individual Rights in Canada: The Impact of the New Canadian Charter of Rights and Freedoms” 59 Notre Dame L. Rev. 1191 (1983-1984). 1191-1242.
Russell, Peter, H. “The Political Purposes of the Canadian Charter of Rights and Freedoms,” Canadian Bar Review 61 (1983). 30-54.
Hogg, Peter, W. Constitutional Law of Canada, Student Ed. 2003.
[i] R. v. Morgentaler, [1988] 1 SCR 30, 1988 CanLII 90 (SCC)
[ii] Vriend v. Alberta, [1998] 1 SCR 493, 1998 CanLII 816 (SCC)
[iii] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11
[iv] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11
[v] Reference re Same-Sex Marriage, [2004] 3 SCR 698, 2004 SCC 79
[vi] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11
[vii] R. v. Oakes, [1986] 1 SCR 103, 1986 CanLII 46 (SCC)
[viii] R. v. Stillman, [1997] 1 SCR 607, 1997 CanLII 384 (SCC)
[ix] R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32 (CanLII)
[x] R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32 (CanLII)
[xi] Ford v. Quebec (Attorney General), [1988] 2 SCR 712, 1988 CanLII 19 (SCC)