Judicial System & Legal Issues

The Canadian Charter of Rights and Freedoms: An Introduction to Charter Rights

Jay Makarenko — Fri, 07 Sep 2007 13:48:24 -0600

The Canadian Charter of Rights and Freedoms is a central element of the Canadian Constitution and has a major impact on the relationship between Canadians and their governments. The purpose of this article is to provide an introduction to the content, application, and enforcement of Charter rights, as well as to explain the role of the courts in determining the precise nature and scope of Charter rights.

What are Charter Rights?

Rights in Canada’s legal and constitutional context

Overview of Canada’s Charter of Rights and Freedoms

Diverse set of constitutional rights and freedoms

Application & Enforcement of Charter Rights

Other key Charter provisions

Judicial Interpretation of Charter Rights

Defining the nature and scope of Charter rights

Sources & Links to More Information

Article sources and links for more on this topic

What are Charter Rights?

Rights in Canada’s legal and constitutional context

The Charter as a Rights Document

The Charter provides Canadian citizens and residents with a broad set of constitutional rights. This, however, raises an important question: what exactly are rights? Answers to this are often very complex, and depend greatly on the context in which specific rights are recognized and exercised. Nevertheless, an introduction to the basic nature of rights can be provided by discussing a very simple example – everyday promises. While we often do not think of promises as being analogous to constitutional rights, their basic nature is very much the same.

Two key things occur when one makes a promise. On the one hand, a duty or obligation is created. When one makes a promise, s/he is obligated to fulfill that promise. On the other hand, an entitlement is also created. When one makes a promise to another, the other person is entitled to claim performance of that promise. This becomes clearer when considering an example, such as the promise to help a friend paint her house. By making that promise you have created a duty or obligation for yourself; when the time comes, you are obligated to help your friend paint. Moreover, your friend has gained an important entitlement; when she goes to paint the house, she is entitled to demand your assistance.

What exactly does all this have to do with constitutional rights? We can view Charter rights as promises made by the state to its citizens. Take, for example, the Section 2(b) Charter right to freedom of expression. This right represents a promise by the state not to interfere with a person’s expressive activities. Moreover, like promises, this right involves important duties and entitlements. On the one hand, the state has the duty not to interfere with a person’s expression. On the other hand, individuals have the entitlement to claim non-interference from the state.

Each right under the Canadian Charter of Rights and Freedoms offers a different promise with its own unique set of duties and entitlements.

See the Overview of Charter Rights and Freedoms section of this article for more information on specific rights provided for by the Charter.

Charter Rights and Canada’s Legal System

In everyday life we know promises are often not kept. When the time comes to help your friend paint the house, you might break your promise by saying you are busy, or, by simply not showing up. Unfortunately, for your friend, there really isn’t anything that she can do to force you to keep your promise. She may attempt to use guilt or threaten to end your friendship, but, at the end of the day, she really has no formal power to ensure the promise is fulfilled.

Charter rights, by contrast, have a stronger element of security attached to them. This is because they are legal rights; they are rights recognized under Canada’s legal system and enforced by Canadian courts. As such, Canadians have the opportunity to take the state to court whenever they feel their Charter rights have been violated. Moreover, the courts have the power to enforce those rights – and to force the state to perform its Charter duties.

See the Judicial Interpretation of Charter Rights section of this article for more on the role of the courts in adjudicating and enforcing Charter rights.

This, however, is not to suggest that Charter rights can never be violated. The Charter itself provides several legal avenues for the state to break its promises. Under Section 1 of the Charter, for example, the state may limit a Charter right if it can show good cause or reason. Under Section 33 of the Charter, governments may also pass laws that are exempt from certain Charter rights.

See the Overview of Charter Rights and Freedoms section of this article for more information on Section 1 of the Charter. See the Application and Enforcement of Charter Rights section of this article for more information on Section 33 of the Charter.

Charter Rights & the Canadian Constitution

Finally, the Charter is part of the Canadian Constitution. This means Charter rights have a very special status in Canada’s legal and political traditions. Firstly, the Charter (as well as all other constitutional documents and conventions) is recognized as the supreme law in Canada. As a result, all other laws must conform to the constitutional rights and duties provided for in the Charter. Whenever there is a conflict with another law, the Charter always takes precedence; it is usually the case the other law is declared void and subsequently repealed.

Secondly, the constitutional status of the Charter means its rights and freedoms can only be changed under very specific circumstances. Governments can change regular laws whenever they like by simply introducing new legislation that repeals, amends, or replaces the old law. However, they cannot do this in the context of constitutional laws such as the Charter. Instead, governments must enact a formal constitutional amendment to make any such changes. In the case of the Charter, this would require the consent of the federal Parliament (the Monarch, House of Commons, and Senate) plus two-thirds of the provincial legislatures (which combined represent at least 50 percent of the national population). While such an amendment is technically possible, it is, in practice, a very difficult thing to achieve, making Charter rights even more secure than other legal rights found in regular federal and provincial legislation.

For more information on the Charter and the Canadian Constitution: The Canadian Constitution: Introduction to Canada’s Constitutional Framework

Overview of Charter Rights and Freedoms

Diverse set of constitutional rights and freedoms

The Charter provides Canadians with a diverse set of constitutional rights and freedoms, ranging from fundamental freedoms, to democratic and legal rights, to equality rights, to language rights. The following section offers a brief introduction to each of these Charter rights.

Reasonable Limits Clause

Before describing specific Charter rights and freedoms, it is important to note a key clause found at the beginning of the document. Section 1 states Charter rights are subject only to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” What exactly does this mean? Firstly, Section 1 recognizes that Charter rights and freedoms are not absolute; they are not guaranteed to such an extent that they may never be violated or limited. Section 1, instead, states that these rights and freedoms may be limited under certain circumstances.

Under what circumstances may Charter rights and freedoms be violated? Section 1 asserts that any legitimate limitation must be prescribed by law, meaning it must be written in either legislation or regulation. The section also states that any limitation must be demonstrably justifiable in a free and democratic society. This means, among other things, that the state must provide good cause or reason for violating a Charter right. The state cannot violate a right for no reason, or on grounds the courts find to be insufficient.

Since the enactment of the Charter in 1982, the courts have provided further clarification of Section 1. In particular, they have developed an important legal test for assessing whether or not the state has provided appropriate justifications for limiting a Charter right. This legal test is commonly referred to as the Oakes test, and is named after the case in which it was first recognized: R. v. Oakes.

For judicial interpretations of Section 1 of the Charter and the Oakes test: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Guarantee of Rights and Freedoms” section)

Fundamental Freedoms

Within the basic framework laid out in Section 1, the Charter then goes on to provide for a diverse set of basic rights and freedoms. The first of these are referred to as “fundamental freedoms,” and are found under Section 2 of the Charter.

They include:

Freedom of conscience and religion;
Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of expression;
Freedom of peaceful assembly; and,
Freedom of association.

Generally speaking, these freedoms have been interpreted by the courts as liberty rights. In other words, they involve the right of persons to be free from state interference when engaging in the listed activities. In the case of freedom of expression, for example, persons are to be free from state interference (such as legal prohibitions) when communicating their thoughts and beliefs to other persons.

For judicial interpretations of the fundamental freedoms: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Fundamental freedoms” section)

Democratic Rights

Sections 3-5 of the Charter provide several rights related to Canada’s democratic system. These can be further divided into two types: the first concerns democratic participation, and gives every citizen the right to vote in federal, provincial, or territorial elections, as well as the right to run as a candidate for political office. These rights help ensure that, among other things, the state cannot exclude certain individuals or groups from taking part in the democratic process.

The second type of democratic rights relate to the operation of federal, provincial, and territorial legislatures. Section 4 of the Charter, for example, states that no House of Commons or provincial assembly can continue to sit for longer than five years (after which time a general election must be held). The section does, however, allow for longer periods under extraordinary circumstances, such as war or national emergency. Section 5 of the Charter further states that Parliament and provincial assemblies must sit at least once a year. This helps ensure that elected representatives and the public have a chance to question government actions on a regular basis.

For judicial interpretations of the democratic rights: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Democratic rights” section)

Mobility Rights

Section 6 of the Charter provides citizens (and, in some cases, permanent residents) with a set of mobility rights.

These include the right to:

Enter, remain in, and leave, Canada;
Move to, and take up residence in, any province; and,
Pursue the gaining of a livelihood in any province.

Generally speaking, these rights help ensure that persons are free to come and go as they please, be it to enter or leave the country, or move from one area to another. The section also helps ensure that citizens are free to seek employment or business opportunities in all parts of Canada. The section does, however, allow the provinces to undertake some policies that may be considered detrimental to mobility, such as providing social benefits only to persons who have lived in the province or territory for a certain amount of time, passing employment laws requiring workers to meet certain qualifications before practicing their profession or trade, and creating employment programs that favour its own residents when the province has an employment rate that is below the national average.

For judicial interpretations of the mobility rights: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Mobility rights” section)

Legal Rights

Sections 7 through 14 provide persons with a broad set of legal rights – rights relating to Canada’s justice system.

These include 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;
Be secure against unreasonable search or seizure;
Not to be arbitrarily detained or imprisoned;
On arrest or detention to be (a) informed promptly of the reasons therefore, (b) retain and instruct counsel without delay and to be informed of that right, and (c) have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful;
Several rights relating to being charged with an offence (such as the right to be informed of the specific offence, tried in a reasonable time, presumed innocent until proven guilty, to name a few);
Not to be subjected to any cruel and unusual treatment or punishment;
Not to have any incriminating evidence given by a witness to be used to incriminate that witness (except in a prosecution for perjury or for the giving of contradictory evidence); and,
The assistance of an interpreter for parties or witnesses who do not understand or speak the language the proceedings are conducted in, or who is deaf.

For judicial interpretations of the legal rights: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Legal rights” section)

Equality Rights

Section 15 of the Charter provides persons with several key equality rights. More specifically, this section states that 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 (in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability). This section helps ensure every individual is considered equal under Canadian law and that governments don’t discriminate against certain groups in its policies and programs. Over the years, the courts have extended the section to include other grounds of discrimination, such as sexual orientation.

It is also important to note that section 15 explicitly states it does not preclude any government law or program aimed at improving the status of a disadvantaged group (for example, an affirmative action program established to increase employment opportunities for women or minorities). This clarification is important in that it eliminates constitutional challenges to such programs on the grounds they discriminate against non-disadvantaged groups (such as white males).

For judicial interpretations of the equality rights: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Equality rights” section)

Official Languages Rights

Sections 16 through 22 deal with rights relating to Canada’s two official languages. Section 16 confirms that English and French are Canada’s official languages, and that both enjoy equal status, in terms of their use within, and by, all federal institutions. The section also recognizes the Province of New Brunswick as officially bilingual –that both language communities have equal rights in the province, and that the Government of New Brunswick has the duty to protect and promote those rights.

Sections 17-20 proceed to provide more specific official language rights:

Everyone has the right to use English or French in any debates or other proceedings of Parliament;
Everyone has the right to use English or French in any debates or other proceedings of the legislature of New Brunswick;
The statutes, records, and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative;
The statutes, records, and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative;
Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament;
Either English or French may be used by any person in, or in, any pleading in, or process issuing from, any court of New Brunswick;
Any member of the Canadian public has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French; and,
Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

Sections 21 and 22 place some qualifications on the official language rights provided under sections 16 to 20. Section 21 states that the Charter’s official language rights are not to take away from any of the other language rights that existed previously under other parts of the Canadian Constitution, such as the right of persons in Quebec and Manitoba to use either English or French in their provincial legislatures and courts. Further, Section 22 helps ensure that the Charter rights to use English and French do not create limits on rights to use other languages that may exist under federal or provincial law.

For judicial interpretations of the official languages rights: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Official language rights” section)

Minority Language Education Rights

Section 23 of the Charter deals with minority language education rights.

This section requires provincial governments to provide education to Canadians in the official language of their choice, even when only a minority speaks a given language. In English-dominated areas, this means that French-speaking minorities have the right to educate their children in French (and vice versa for English minorities in French-dominated areas). The section does, however, provide some important qualifications:

In order to claim the minority language education rights for their children, in most cases parents must have the minority language as their first language, or have received their own primary education in the minority language, or have a child who has received, or is receiving, his or her education in the minority language;
In Quebec, the minority language education rights do not apply until permitted by the provincial legislative assembly or government of Quebec; and,
In order for parents to claim these minority language education rights, there must be a sufficient number of eligible children in their area to justify providing schooling in the minority language.

For judicial interpretations of the minority language education rights: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see “Minority language education rights” section)

Application & Enforcement of Charter Rights

Other key Charter provisions

The previous section offered an overview of the specific rights and freedoms provided for by the Charter. This section examines other key Charter provisions which deal with the document’s application and enforcement.

Application of the Charter

Section 32 states that the Charter only applies to governments, and, as a result, not directly to private individuals, businesses, or other organizations. In other words, under the Charter, only federal and provincial governments (and, in turn, territorial and local governments) are legally obligated to respect its constitutional rights and freedoms.

This may seem a very narrow application for the Charter. Over the years, however, the courts have interpreted this section in a fairly broad manner. It is usually recognized the Charter applies not only to purely governmental actors and institutions (such as federal and provincial legislatures), but also to entities in which governments play a substantial role. This would include, for example, public schools and universities, public hospitals and other care facilities, Crown corporations, and so forth.

Moreover, the Charter applies to all governmental laws, which can, in some cases, have significant implications for non-governmental entities. For example, most provincial governments have human rights and labour codes, which govern important private relationships, such as between employees and private employers. As governmental laws, these codes must be consistent with the rights and freedoms provided for under the Charter.

For judicial interpretations of the Charter’s application clause: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Application of the Charter” section)

Enforcement Clause

What happens when a Charter right or freedom is violated? Section 24 states that anyone whose Charter rights have been limited or denied may apply to a court of competent jurisdiction to obtain a remedy. In other words, if an individual or group feels their Charter rights have been violated, they may take the violator (in most cases, the federal and/or provincial government) to court. It is then the job of the judicial branch of government to decide whether the Charter right has in fact been unconstitutionally denied and what course of action should be taken. Section 24 thus creates a very important role for the judiciary; it is the interpreter and adjudicator of citizens’ constitutional rights vis-à-vis the state.

For judicial interpretations of the Charter’s enforcement clause: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Enforcement” section).

See the Judicial Interpretation of Charter Rights section of this article for more information on the constitutional role of the courts under the Charter.

Notwithstanding Clause

The Charter does, however, provide the legislative branch with an important over-ride power. Section 33 of the Charter, commonly referred to as the notwithstanding clause, allows federal and/or provincial legislatures to pass laws that are exempt from certain Charter rights and freedoms (specifically, the fundamental freedoms, legal rights, and equality rights). This exemption does not extent to other Charter rights, such as the democratic rights, mobility rights, official language rights, or minority language education rights.

Section 33 does, however, place important restrictions on the manner in which the exemption may be used:

Parliament or a legislature must make an explicit declaration that a particular law is exempt from the Charter and must state specifically which sections of the Charter are not to apply.
An exemption from the Charter lasts a maximum of five years. After that time, Parliament or a legislature must make a new declaration to continue the exemption.

The general purpose of the section is to ensure the democratically elected Parliament and provincial legislatures, not the courts, have the final say regarding the Charter’s application to important issues of public policy. However, the section also requires a government that wishes to limit a Charter right to clearly state its purpose and, as a result, to accept the political consequences of its actions. As of January 2006, provincial legislatures have used Section 33 rarely. It has never been used by the federal government.

For judicial interpretations of the Charter’s notwithstanding clause: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest (see the “Exemption where expressed declaration” section)

For general information on the Charter’s notwithstanding clause: Mapleleafweb: The Notwithstanding Clause

Other General Provisions

Finally, Sections 25 through 31 deal with general principles regarding the Charter’s application in relation to other key values, rights, and institutions in Canada.

Section 25 states that Charter rights and freedoms shall not interfere with any Aboriginal treaty rights or other rights and freedoms that pertain to the Aboriginal peoples of Canada.
Section 26 asserts that Charter rights and freedoms shall not interfere with any other rights and freedoms that may exist in Canada.
Section 27 states that the Charter shall be interpreted in a manner that is consistent with the preservation and enhancement of the multicultural heritage of Canadians.
Section 28 provides that Charter rights and freedoms are to be guaranteed equally to male and female persons.
Section 29 asserts that Charter rights and freedoms shall not interfere with any rights and privileges guaranteed under other parts of the Constitution regarding religious or denominational schools.
Section 30 states that the Charter applies to the territories exactly the same way that it applies to the provinces.
Section 31 states that nothing in the Charter extends the legislative powers of any body or authority, such as the sharing of responsibilities or the distribution of powers between the provinces and the federal government.

For judicial interpretation of the Charter’s general provisions: Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest

Judicial Interpretation of Charter Rights

Defining the nature and scope of Charter rights

Much has already been said of the importance of the judiciary in relation to Charter rights. Under the Charter, the courts are tasked with the job of adjudicating and enforcing the Charter. This means that whenever individuals or groups feel their Charter rights have been violated by the state they may apply to the courts to hear their case. Moreover, the courts have the power to enforce Charter rights and ensure they are respected by the state.

Nature of Judicial Interpretation

More needs to be said, however, about the judiciary’s role as interpreters. The Charter itself is a short document with only very general statements about the nature of the rights and freedoms it provides. As such, Charter rights are often somewhat unclear or highly contestable regarding their precise meaning and application to real life situations. The courts are interpreters of the Charter in this sense; it is their responsibility to clarify these uncertainties in meaning and application. Moreover, in exercising this role, the courts have a significant impact on politics and public policy in Canada.

This point can be made clearer through use of an example. Under Section 2(b), the Charter states everyone has the right to, among other things, freedom of expression. This, however, raises many important interpretive questions when applying the right to real life. For example, what exactly does “expression” mean? Does it only include normal means of communication, such as verbal speech and communication through means of mass media, or does it also include things such as physical gestures? Moreover, what counts as a violation of freedom of expression? Do restrictions on the size or language of a billboard advertisement count as a restriction of expression? How about a law that limits speeches on public property to certain hours of the day?

The interpretive role of the courts becomes even more significant when examining Section 1 of the Charter. This section allows the state to violate Charter rights and freedoms when it provides good cause or reasons. It is the courts, however, that determine whether or not a reason given by the state is actually sufficient. For example, is protecting the dignity of women a sufficient reason for prohibiting certain forms of pornography? Is promoting equality for minorities a sufficient reason for criminalizing certain forms of hate speech?

For more on judicial interpretation of the Charter: Mapleleafweb: Supreme Court Charter Decisions and Canadian Legal Information Institute: The Canadian Charter of Rights and Freedoms Decisions Digest

Importance of Judicial Interpretation

How the courts interpret the nature and scope of Charter provisions has important implications for Canadian politics and public policy. Differing interpretations of Charter rights can result in different sorts of limits and/or opportunities for government policy and action.

Take, for example, the issue of same-sex marriage. Several provincial courts determined that governmental laws, which defined marriage as between a man and a woman, violated the Section 15 Charter right to equality. For these courts, the traditional definition of marriage discriminated against gay and lesbian couples by denying them the right to obtain legally recognized marriages. In deciding this case the courts accepted a particular interpretation of the Charter right to equality. For example, they accepted sexual orientation as a basis of discrimination, even though it is not explicitly recognized under the Charter. (Section 15 only states that persons may not be discriminated based on “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”) Moreover, the courts found that denying same-sex couples the right to obtain legally recognized marriages resulted in inequality, even though most other marriage-related rights (such as spousal benefits) had been previously extended to same-sex couples.

These court decisions had a major impact on government policy. Federal, provincial, and territorial marriage-related laws have now been amended to included same-sex couples. More importantly, the judicial interpretation of the Charter places significant restrictions on the ability of governments to promote traditional forms of marriage in Canadian society. Whether or not one agrees with this outcome, the significance of judicial interpretation of the Charter cannot be denied.

For more on the Charter and same-sex marriage: Mapleleafweb: Legalization of Same-sex Marriage in Canada

It is important to note, however, that the judiciary does not have the final say on these sorts of issues. The notwithstanding clause under Section 33 of the Charter does provide governments with the ability to over-ride judicial decisions and exempt laws from certain Charter rights. As such, governments could have protected the traditional definition of marriage by simply including a statement that the definition was exempt from Section 15 of the Charter. In fact, two votes were held in the (federal) House of Commons on this matter. In both cases, however, a majority of Members of Parliament voted against overriding the judicial interpretation of the Charter.

For general information on the Charter’s notwithstanding clause: Mapleleafweb: The Not-withstanding Clause. Also see the Application & Enforcement of Charter Rights section of this article for more on the Section 33 not-withstanding clause.

Sources and Links to More Information

Article sources and links for more on this topic

Article Sources

Dyck, R. Canadian Politics: Critical Approaches, 3rd Edition. Scarborough, Ontario: Nelson Thompson Learning, 2000.
“Constitution Acts, 1867 to 1982”. Department of Justice Canada. 23 January 2007. <http://laws.justice.gc.ca/en/const/index.html>
“Your Guide to the Canadian Charter of Rights and Freedoms.” Canadian Heritage. 23 January 2007. <http://www.canadianheritage.gc.ca/progs/pdp-hrp/canada/guide/index_e.cfm>
“The Canadian Charter of Rights Decisions Digest.” Canadian Legal Information Institute. 23 January 2007. <http://canlii.ca/ca/com/chart/>

Links for More Information

The Canadian Constitution: Introduction to Canada’s Constitutional Framework

Jay Makarenko — Wed, 01 Aug 2007 00:00:00 -0600

The Constitution is Canada’s premier political institution, representing the basic “rulebook” by which Canadian politics operate. It is, however, also one of the nation’s more complex political concepts to understand. The purpose of this article is to provide an introduction to the basic nature of the Canadian Constitution. In so doing, this article examines the function of the Constitution as a governmental or national political code, the Constitution’s written and unwritten sources, and the key principles and values contained within the constitutional framework.

What is the Canadian Constitution?

Basic nature and function of the Constitution

Sources of the Canadian Constitution

Diverse set of written and unwritten rules

Provisions of the Canadian Constitution

Key constitutional principles and values

Evolving the Canadian Constitution

Constitution amendment & interpretation

Sources & Links for More Information

List of article sources and links for more on this topic

What is the Canadian Constitution?

Basic nature and function of the Constitution

Constitution as a Political Rulebook

Generally speaking, a constitution is a system or code that establishes the rules and principles by which an organization is governed. Many different types of organizations have constitutions, ranging from companies, to voluntary organizations, to political parties. The Canadian Constitution is an example of a particular type of constitution, usually referred to as a governmental or national constitution. In this context, the Canadian Constitution establishes the rules and principles that govern the operation of government and political life in Canada. It represents, in essence, the basic “rulebook” of Canadian politics, setting out the nation’s fundamental political principles, the powers and duties of government, and the rights and privileges of citizens.

Governing Key Political Relations

As the basic rulebook for Canadian politics, the Constitution governs several key political relations in Canadian society. First, it establishes basic principles and rules that govern the relationship between citizens and the state. In this context the state is understood as encompassing all branches (executive, legislative, and judicial) and levels (federal, provincial, territorial, and local) of government. The Constitution empowers the state (or parts of it) to deliberate, enact, and implement laws that will govern the life of citizens. At the same time, the Constitution also recognizes important citizen rights that limit how the state may exercise this power and authority.

Secondly, the Constitution provides the basic principles and rules that govern the relationship between different parts of the state. It establishes the distribution of functions and powers between the different parts or branches of government, such as between the political executive (Monarch and Cabinet), the legislatures (House of Commons and Senate), and the judiciary (Canada’s courts). The Constitution also provides the basic rules governing the relationship between different levels of government, such as the federal (or national), provincial and territorial (regional), and local governments.

See the Provisions of the Canadian Constitution section of this article for more information on how the Constitution governs these political relations.

Supreme Law and Constitutionalism

The Constitution is recognized as the supreme law in Canada. This means the principles and rules contained within it have a special legal status in Canadian political society. In the first place, the Constitution takes precedence over all other Canadian laws. When inconsistency occurs with another law, the Constitution is always recognized as being preeminent (it is often the case that the other law will be declared ‘unconstitutional’ because of this inconsistency and, as a result, will have no legal force). Furthermore, this notion of supremacy carries with it the principle of Constitutionalism. Under this principle, no political actor or institution is above the principles and norms as defined by the Constitution. Regardless of whether one is the Monarch, the Prime Minister of Canada, a provincial Premier, or an elected representative in a legislature, all are legally obligated to act in accordance with the constitutional rulebook.

Sources of the Canadian Constitution

Diverse set of written and unwritten rules

The Canadian Constitution is based upon a diverse collection of written statutes, orders, judicial decisions, and unwritten conventions and traditions. The following section provides an introduction to these different constitutional sources.

Constitutional Acts and Amendments:

Much of the Canadian Constitution has been established in the form of written constitutional acts and amendments. These are formal constitutional documents (or changes to previous versions of the same document) that have been enacted by British or Canadian legislatures for the purpose of setting out the nation’s constitutional framework. The most important of these is the British North America Act, 1867 (which, in 1982, was re-named the Constitution Act, 1867). This piece of legislation, originally passed by the British Parliament in 1867, is Canada’s founding document, providing for the joining of Nova Scotia, New Brunswick, Ontario, and Quebec into the Dominion of Canada. Moreover, this document established many of the basic institutions of government in Canada, such as the Monarchy, the Parliamentary system, and federalism.

Since passage in its original form, the Constitution Act, 1867 has been amended numerous times. One of the most important amendments is the Constitution Act, 1982, which significantly changed the nation’s basic constitutional norms and rules. This amendment included a domestic constitutional amending formula (ending the tradition of constitutional acts and amendments being passed by the British Parliament), the Canadian Charter of Rights and Freedoms (which provided for constitutionally protected rights for citizens), and statements concerning key areas in Canadian governance (such as equalization payments between provinces, multiculturalism, and Aboriginal rights).

Other formal constitutional amendments of note include:

Constitution Act, 1907 (established a new regime of federal-provincial relations)
Constitution Act, 1930 (transferred ownership of natural resources from the federal government to Western provinces)
Constitution Act, 1940 (transferred unemployment insurance to federal jurisdiction)
Newfoundland Act, 1949 (resulted in Newfoundland officially becoming part of Canada)
Constitution Act, 1951 (allowed the federal government to legislate in the area of old age pensions)
Constitution Act, 1964 (established old age pensions as an area of joint federal- provincial jurisdiction)

Constitution Act, 1985 (permitted future distribution of seats in Parliament to be done by ordinary statute)
Constitution Amendment Proclamation, 1993 (made both the English and French languages official in New Brunswick)
Constitution Act, 1999 (provided the new territory of Nunavut with representation in the House of Commons and the Senate)

British Statutes and Orders-in-Council

Another important foundation for the Canadian Constitution is a collection of British statutes and Orders-in-Council.

In this context, British statutes refer to legislation originally passed by the British Parliament, which, although not formal constitutional acts, nevertheless still have significant constitutional consequences for Canada today. Chief amongst these is the Statute of Westminster, 1931, which recognized Canada (as well as many other dominions of the British Empire) as being completely independent of Britain.

British Orders-in-Council, by contrast, are executive decisions made by the British Cabinet (Prime Minister and cabinet ministers). Constitutionally important orders in Canadian constitutional history include the Rupert’s Land and North-Western Territory Order, 1870 (which transferred Hudson Bay Company lands to Canada), the British Columbia Terms of Union, 1871 (joined British Columbia to Canada), the Prince Edward Island Terms of Union, 1873 (joined that colony to Canada), and the Adjacent Territories Order, 1880 (extended Canada’s borders to include the Arctic Islands).

Other Canadian Statutes

The Canadian Constitution also includes several Canadian statutes, which are pieces of legislation passed by Canadian legislatures that have important constitutional implications. These would include those carving provinces and territories out of the Northwest Territories, such as the Manitoba Act of 1870, Saskatchewan Act of 1905, the Alberta Act of 1905, the Yukon Act, and the Nunavut Act. Other examples include the Supreme Court Act, the Parliament of Canada Act, and the Canada Elections Act, which all govern the operation of important institutions in Canadian politics.

Judicial Decisions

Another important constitutional source: judicial decisions that clarify or alter provisions of Canada’s written constitutional documents, statutes, and Orders-in-Council. In particular, this would include the judgments of the British Judicial Committee of the Privy Council (which acted as Canada’s last court of appeal in constitutional matters until 1949) and the Supreme Court of Canada (which later replaced the British Judicial Committee as the nation’s highest court). While judicial decisions have impacted all aspects of the Constitution, they have been especially significant in the areas of federalism and citizen rights and freedoms.

See the Evolving the Canadian Constitution section of this article for more information on the constitutional role of the judiciary.

For more information on judicial constitutional decisions in Canada: Mapleleafweb: Supreme Court Charter Decisions

Unwritten Conventions

Canada’s Constitution is also based upon numerous unwritten conventions. These are rules and norms that have never been formally written in a constitutional document, but are regularly observed nevertheless. Many of these unwritten rules have been inherited from Britain (with some modification), while others are unique to the Canadian constitutional context. Important examples include the predominant role and influence played by the Prime Minister of Canada (in Cabinet and in the executive branch in general), the subordinate position of the Governor General of Canada, and the practice of responsible government (with Cabinet required to resign if it cannot hold a majority of support in the House of Commons).

Provisions of the Canadian Constitution

Key Constitutional Principles and Values

The Canadian Constitution encompasses a wide set of principles and values that govern key political relations in Canadian society. The following section provides an introduction to some of these key constitutional provisions.

Constitutional Monarchy

A central component of Canada’s constitutional framework is the provision for a constitutional monarchy. The Constitution Act, 1867 states that executive government and authority in Canada is vested in the Canadian Monarchy (which Canada shares with Great Britain and other former British colonies). The Act further provides for the offices of the Governor General of Canada (at the federal level) and Lieutenant Governors (at the provincial level), recognized as the Monarch’s representatives in Canada. It is important to note, however, that while the written constitution explicitly places executive authority in the hands of the Monarch and his/ her representatives, unwritten constitutional convention holds that this authority is actually exercised by the Prime Minister and his/her Cabinet.

For more on Canada as a constitutional monarchy read Mapleleafweb features: The Monarchy in Canada and The Governor General of Canada

Parliamentary Government

The Canadian Constitution also provides for a Parliamentary system of government. The Constitution Act, 1867 established a federal Parliament, consisting of the Monarchy and two legislative chambers, the House of Commons (or Lower House) and the Senate (or Upper House). The Act further states that the powers and authority of these legislative chambers are to modelled upon those found in the British Parliament. Further, the Act also established legislative chambers at the provincial level. In addition to the written provisions of the Act, there also exist several unwritten constitution conventions that are fundamental to the operation of Canada’s parliamentary system. These include executive dominance by the Prime Minister and Cabinet (at the federal level) and by the Premier and Cabinet (at the provincial level), as well as the practice of responsible government.

For more information on parliamentary government in Canada read Mapleleafweb features: Canada’s Parliamentary Government, The Canadian Senate: Role, Powers & Operation, and The Prime Minister & Cabinet in Canada

Federalism

The Constitution also provides for a federal system in Canada, meaning there are two key levels of government: the federal (or national) government and the provincial (or regional) governments. The Constitution Act, 1867 outlines specific powers and jurisdictions for each of these levels of government, such as what public policy fields each may legislate in, as well as how each level of government may raise revenue. Over the years, these constitutional provisions have been further clarified and evolved by judicial decisions (first by the British Judicial Committee of the Privy Council, and later by the Supreme Court of Canada).

There have also been several constitutional amendments that have had significant consequences for Canada’s federal system. The Constitution Act, 1930, for example, transferred ownership of natural resources in Western Canada from the federal government to the Western provinces. Another significant amendment was the Constitution Act, 1982, which committed the federal government and provinces to ensuring some level of economic and social equality between Canadian regions. This, in turn, has led to the development of the Equalization Program and the sharing of public funds between governments.

For more information on Canada’s federal system read Mapleleafweb features: Equalization Program in Canada

Individual Rights and Freedoms

In addition to outlining the basic structure of government, the Constitution provides for a broad set of individual rights and freedoms, most of which are stated in the Canadian Charter of Rights and Freedoms. Key Charter rights include fundamental freedoms (the freedoms of religion, expression, and association), democratic rights (such as the right to vote and run for political office), mobility rights, legal rights (such as the right to be secure against unreasonable search and seizure and the right not to be arbitrarily detained and imprisoned), and equality rights (the right to be treated equal before the law and the right be free from discrimination). It is important to note that the Charter only states these rights and freedoms in very general terms. Their precise meaning is interpreted and clarified by the Canadian judiciary (and, in particular, the Supreme Court of Canada).

For more information on the Canadian Charter of Rights and Freedoms: visit, Department of Justice: Text of the Canadian Charter of Rights and Freedoms

Language and Aboriginal Rights

Not only does the Constitution provide for individual rights and freedoms, but also two important sets of group rights.

The first set of group rights centres on the English and French languages. The Canadian Charter of Rights and Freedoms recognizes both of these as Canada’s official languages. The Charter also recognizes these languages as having equality of status in all federal government institutions, as well as in all New Brunswick provincial government institutions (New Brunswick has significant English and French populations). The Charter also extends several minority language education rights. This means, for example, that French or English citizens who are part of the linguistic minority in a province have the right to have their children educated in that minority language.

A second set of constitutional group rights centres on Aboriginal ethnic groups. The Constitution Act, 1982, for example, recognizes and affirms existing Aboriginal and treaty rights (which may include a broad range of particular rights, such as the right to use certain pieces of land and the right to continue traditional social and economic practices). The Act also states that Aboriginal groups must be consulted before any amendment is made to Class 24 of Section 91 of the Constitution Act, 1867 (which places Aboriginal people and reserve lands under the jurisdiction of the federal government).

Finally, as with the individual rights and freedoms found under the Charter, the precise meaning and consequences of these group rights are interpreted and clarified by the Canadian judiciary, and, in particular, by the Supreme Court of Canada.

Evolving the Canadian Constitution

Constitution Amendment and Interpretation

Earlier it was asserted that the Constitution represents the basic set of norms and rules governing the operation of government and political life in Canada. This raises an important question: what occurs when citizens desire to change these basic rules, or when the existing rules fail to fully account for new or unanticipated circumstances? In these situations the Constitution may be changed or clarified through two important mechanisms: formal constitutional amendments and judicial interpretation.

Formal Constitutional Amendments

Formal constitutional amendments are pieces of legislation passed by Canadian legislatures that change basic constitutional norms and principles. The Constitution may be altered in this manner at any time and for any reason. The Constitution Act, 1982 does, however, place specific requirements (referred to as ‘amending formulas’) on the manner in which these changes may take place. There are five different amending formulas in all under the Constitution.

The first amending formula applies to the following constitutional areas:

The office of the Monarch, the Governor General, and the Lieutenant Governor of a province;
The right of a province to have the same, or more, members in the House of Commons than it has in the Senate;
The use of the English or French language at the federal level of government;
The composition of the Supreme Court of Canada; and,
Changes to this list of items that require unanimous consent for constitution change.

In order to make changes to these items, the first amending formula requires unanimous federal and provincial consent. This means the constitutional amendment must be approved by the federal Parliament (which includes the Monarchy, the House of Commons, and the Senate), as well as all of the provincial legislatures.

The second amending formula applies to all other matters that affect both the federal government and all of the provinces. It, however, requires only unanimous federal and significant provincial consent. This means, more specifically, approval by the federal Parliament (again, the Monarchy, House of Commons, and Senate) plus two-thirds of the provincial legislatures, which combined represent at least 50 percent of the national population.

The consequences of this second amending formula, however, differ depending on the particular area of the constitutional amendment. In some cases, dissenting provinces can “opt-out” of the constitution change. Remember, the second amending formula only requires consent by two-thirds of the provinces (representing at least 50 percent of the national population). If, for example, seven of 10 provinces agreed to transfer a provincial power to the federal government, the constitutional change would only apply to those seven provinces that consented. The remaining three provinces could choose to retain that power. In other cases, however, there is no opt-out option, meaning the constitutional amendment is applied to all provinces, consenting or not. This would include amendments to the following items:

The principle of proportionate representation in the House of Commons;
The powers of the Senate and the method of selecting Senators;
The number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;
The Supreme Court of Canada (other than its composition);
The expansion of provincial borders into the territories; and,
The establishment of new provinces.

The third amending formula applies only to constitutional amendments that affect the federal government and one or more (but not all) of the provinces. This would include such items as boundary alternations between provinces or changes to the use of the English or French languages within a province. Such changes would require only the consent of the federal Parliament and the legislatures of those provinces involved.

The fourth amending formula applies to constitutional amendments that only affect the federal government, such as the executive government, the House of Commons, or the Senate (excluding, of course, those items listed under the other amending formulas). Under this formula, only the consent of the federal Parliament is needed (the Monarch, House of Commons, and Senate).

Finally, the fifth amending formula allows individual provinces to amend their own constitutions (excluding matters that affect other provinces or the federal government, or the office of Lieutenant Governor). Such matters require only the consent of the provincial legislature.

Judicial Constitutional Interpretation

Only the executive and legislative branches of government (together) have the authority to enact formal constitutional amendments. Nevertheless, the judicial branch, as constitutional adjudicators and interpreters, play an important role in the evolution of the Canadian Constitution.

In understanding the judiciary’s role, it is important to note the nature of Canada’s Constitution. Written constitutional sources, such as the Constitution Act, 1867 and the Constitution Act, 1982, are short documents with very general statements regarding the structure of government and citizen rights. As a result, constitutional principles and values may be somewhat unclear or highly contestable.

The federal government and the provinces, for example, often disagree on the details of federalism (where does the jurisdiction of one level of government end and the jurisdiction of another begin?). Furthermore, there is often disagreement over the precise application of individual and group rights contained in the Constitution (for example, do government limits on hate expression unconstitutionally violate the Charter right to freedom of expression?)

When these sorts of constitutional conflicts occur, it is the role of the judiciary to adjudicate the issue, that is, to decide whose side the Constitution favours. In so doing, the judiciary undertakes the task of interpreting the meaning of specific constitutional provisions and how they should be applied in a particular context. For example, do constitutional Aboriginal rights include the right to hunt and fish on provincial land? Does the traditional legal definition of marriage (as between one man and one woman) violate the Charter right to equality?

In addressing these constitutional questions, the judiciary can have substantial impacts on the nation’s basic political norms and rules. They may, for example, interpret the constitutional principle of federalism in a more centralized (pro-federal government) or decentralized (pro-provinces) terms. They may interpret individual freedoms in a more liberal or conservative manner (which will affect the sorts of actions an individual may or may not be free to take). They may apply different interpretations to language and Aboriginal rights, which, in turn, can have a social and/or economic impact on the these linguistic and ethnic groups.

Sources and Links for More Information

List of article sources & links for more on this topic

Article Sources

Dyck, R. Canadian Politics: Critical Approaches, 3rd Edition. Scarborough, Ontario: Nelson Thompson Learning, 2000.
Jackson J. & Jackson D. Politics in Canada: Culture, Institutions, Behaviour and Public Policy, 6th Edition. Toronto: Pearson Education Canada Inc, 2006.
“Constitution Acts, 1867 to 1982”. Department of Justice Canada. 09 January 2007. <http://laws.justice.gc.ca/en/const/index.html>

Judicial System & Legal Issues

The Canadian Charter of Rights and Freedoms: An Introduction to Charter Rights

Rights in Canada’s legal and constitutional context

Diverse set of constitutional rights and freedoms

Other key Charter provisions

Defining the nature and scope of Charter rights

Article sources and links for more on this topic

What are Charter Rights?

The Charter as a Rights Document

Charter Rights and Canada’s Legal System

Charter Rights & the Canadian Constitution

Overview of Charter Rights and Freedoms

Reasonable Limits Clause

Fundamental Freedoms

Democratic Rights

Mobility Rights

Legal Rights

Equality Rights

Official Languages Rights

Minority Language Education Rights

Application & Enforcement of Charter Rights

Application of the Charter

Enforcement Clause

Notwithstanding Clause

Other General Provisions

Judicial Interpretation of Charter Rights

Nature of Judicial Interpretation

Importance of Judicial Interpretation

Sources and Links to More Information

Article Sources

Links for More Information

The Canadian Constitution: Introduction to Canada’s Constitutional Framework

Basic nature and function of the Constitution

Diverse set of written and unwritten rules

Key constitutional principles and values

Constitution amendment & interpretation

List of article sources and links for more on this topic

What is the Canadian Constitution?

Constitution as a Political Rulebook

Governing Key Political Relations

Supreme Law and Constitutionalism

Sources of the Canadian Constitution

Constitutional Acts and Amendments:

British Statutes and Orders-in-Council

Other Canadian Statutes

Judicial Decisions

Unwritten Conventions

Provisions of the Canadian Constitution

Constitutional Monarchy

Parliamentary Government

Federalism

Individual Rights and Freedoms

Language and Aboriginal Rights

Evolving the Canadian Constitution

Formal Constitutional Amendments

Judicial Constitutional Interpretation

Sources and Links for More Information

Article Sources

Links for More Information

External Links