HUMAN RIGHTS AND
THE COURTS IN CANADA
Law and Government Division
Revised October 2001
FROM CONFEDERATION TO THE
BILL OF RIGHTS
THE BILL OF RIGHTS
THE ADVENT OF
HUMAN RIGHTS AND THE COURTS IN CANADA
Although universally embraced
in principle, the concept of human rights evades a precise
definition and is subject to a general lack of consensus on how it should
be approached. Certainly, the term right, in and of
itself, is confusing. It is sometimes construed as being something
natural or inalienable (i.e., possessed simply by virtue of being human).
In other instances, it is viewed in a strict legal sense as being something
created and therefore, removable or alterable (i.e. by contract or statute)
the right-holder is entitled to something that another has a corresponding
duty to provide.
The prevailing contemporary
notion of human rights flows from an acceptance of natural rights
theory as expounded by such liberal philosophers as John Locke.
Some generalizations can be made in this regard. Human rights tend
to represent individual and group demands for access to wealth and power
and for mutual respect. These rights are both legally and morally
justifiable, and they apply to all persons simply because they are human
beings. Most rights are qualified or limited in some way, usually
on the basis that with the privilege of rights comes the responsibility
to tolerate the rights of others.
Underlying these generalizations
are debates about the precise nature of human rights. There is still
the question of whether civil and political rights should take primacy
over economic, social and cultural rights.(1)
Arguments are ongoing between those who view human rights as purely individual
and those who see them as collective or group-based. There are also
contentions that too much emphasis is put on individual rights and not
enough on relationships or duties to others in the human community.
Finally, there is the matter of whether rights are trans-cultural or vary
from culture to culture. Obviously, none of these issues will ever
be resolved to everyones satisfaction and this, in and of itself,
can thwart the advancement of human rights. This may not be inevitable,
however. For example, tensions between universal ethics
and local cultures may always exist, but they need not necessarily be
viewed negatively. A positive approach to this issue might be the
recognition that universal human rights principles often evolve out of
local experiences, beliefs and customs.(2)
The promotion, protection
and implementation of human rights are matters of public policy.
Controversies about human rights issues, such as those illustrated above,
are rarely resolved by applying traditional legal principles. The
public policy of human rights has tended to divide rights into four broad
categories: (1) political rights, which traditionally include freedom
of association, assembly, expression, the press, conscience and religion;
(2) legal rights, such as equality before the law, due process of the
law, freedom from arbitrary arrest, the right to a fair hearing, and access
to counsel; (3) economic rights, which include the right to own property
and freedom to contract; and (4) egalitarian rights, such as the right
to employment, education, accommodation, facilities and services without
discrimination on the basis of race, origin, age or sex etc. Generally,
the public policy of human rights has tended to take a hierarchical approach
to different categories of rights, and indeed to specific rights within
categories. Human rights are commonly priorized as being either
fundamental or non-fundamental.
Our perception of human
rights is coloured to a large extent by variables specific to time and
culture. In the seventeenth and eighteenth centuries, for example,
the protection of liberty, security and property was championed in such
documents as Englands Bill of Rights, Frances Declaration
of the Rights of Man and of the Citizen and the U.S. Bill of Rights.
Negative rights, showing resistance to state interference
or oppression, have been classified as first generation rights.
In the twentieth century, emphasis has been more on the right to self-determination,
work, food, clothing and shelter economic, social and cultural
or second generation rights. Known as positive rights,
because their implementation is dependent on state intervention, these
collective rights pursue social equalization. First and second generation
rights have largely been recognized in international and national human
rights instruments; however, they have yet to gain universal acceptance
or practical application. Arguably, in an era of massive globalization,
there is emerging a third generation of rights which might go under
the heading of global solidarity. These include rights to a healthy
environment, peace and development and to a fair distribution of wealth
and go beyond first and second generation rights. Third generation
rights require the interest and co-operation of every element of society
(individuals, social and cultural groups, the industrial and economic
community, local and national governments and the entire international
The evolution of Canadas
human rights system has been a mix of the British liberal tradition of
relying on ordinary law and elected parliaments, and the American liberal
tradition, which places reliance on a written constitution and judicial
review. In order to reflect adequately the different sets of mechanisms
used to protect human rights in Canada, it is useful to divide the Canadian
experience into three time periods.
During the first period,
from Confederation to 1960, the federal and provincial legislatures had
the primary responsibility for safeguarding the human rights principles
inherited from the United Kingdom. The judiciary played only a minor role
through its responsibility for upholding the common law principles that
had developed to protect these rights. Despite the existence of
legal bases for action, the courts and the legislatures both evidenced
a general reluctance to address issues of human rights except as a peripheral
matter. The second period began with the advent of the Canadian
Bill of Rights and the enactment of human rights codes at both the
provincial and federal level. During this period, the courts were
therefore expressly invited by the legislatures to take on a more active
role in settling controversial human rights issues. The invitation
was, however, basically rejected. It was not until the third period,
beginning in 1982 with the Canadian Charter of Rights and Freedoms,
that the judiciary was accorded the constitutional mandate it had felt
was necessary to rule on the substantive validity of legislation, which
it now does to ensure compliance with the rights and freedoms granted
by the Charter.
CONFEDERATION TO THE BILL OF RIGHTS
At the time of Confederation,
it was decided that Canada would adopt the parliamentary form of government
that had evolved in the United Kingdom. One of the dominant principles
underlying that system was the doctrine of parliamentary supremacy, which
held that the legislative branch of the government could determine the
powers of the other two branches: the executive and the judiciary.
Canada inherited this principle of legislative supremacy by way of the
preamble to the British North America Act, now referred to as the
Constitution Act, 1867. This stated that Canada would have
a constitution similar in principle to that of the United Kingdom.
This meant that the Canadian Constitution embraced the elements of the
unwritten British constitution, including the notions of the rule of law
and parliamentary supremacy. Legislative supremacy could not, however,
apply in Canada exactly as it did in the United Kingdom; as Canada was
a federal country, no single legislature was supreme. Instead, the
federal and provincial legislatures were supreme only within constitutionally
designated areas of jurisdiction.
The Constitution Act,
1867 also made provision for the establishment of a federally appointed
judiciary charged not only with the traditional judicial tasks of settling
disputes between individuals and interpreting statutes with a view to
the intent of the legislators, but with a third task arising out of the
new countrys federal nature adjudication on the constitutional
division of powers between the federal and provincial legislatures.
Thus, at the time of Confederation, the relationship between the courts
and the other branches of government was clearly defined. The federal
and provincial legislatures made the law, the executive implemented and
enforced the law and the judiciary was responsible only for interpreting
the law that the others had made and enforced. Moreover, until 1949,
the Judicial Committee of the Privy Council in England, rather than the
Supreme Court of Canada, served as Canadas final court of appeal.
The Constitution Act,
1867 makes no specific reference to human rights or fundamental liberties.
While section 92(13) accords the provincial legislatures the power to
make laws affecting property and civil rights, there is no
reference to any civil rights of individuals. The Act does guarantee some
group rights with respect to the establishment and operation of schools
by Roman Catholic or Protestant minorities and with respect to the use
of the English and French languages; however, it is fair to say that these
guarantees saw little in the way of judicial enforcement until quite recently.
It was the opinion of some jurists by the beginning of the twentieth
century that the preamble to the Act bestowed on Canadians the benefits
of the tradition of civil liberties that had developed in the United Kingdom
before 1867 and which formed part of that countrys unwritten constitution.
As will be seen, however, the courts were reluctant to interpret the Constitution
in this way when it was not clear that such had been the intent of its
framers and when the principle of parliamentary supremacy had by that
time taken on almost sacred proportions.
As a rule then, judges
in this period felt that they were powerless to prevent legislative violations
of human rights unless the law that caused the violation offended the
federal division of powers. In 1899, for example, the Judicial Committee
of the Privy Council in London struck down a British Columbia law that
prohibited anyone of Chinese origin from working in mines on the basis
that the provincial law interfered with federal jurisdiction over naturalization
and aliens. On the other hand, the Judicial Committee upheld
British Columbia legislation that denied the vote to Canadians of Asiatic
origin as being within the proper bounds of provincial jurisdiction.
In both instances, the Judicial Committee noted that, in accordance with
the principle of legislative supremacy, judges could not consider the
policy or impolicy of such enactments.
The courts were more than
content to leave all policy decisions to the legislatures, even in those
areas untouched by Parliament and which had been subject to purely judge-made,
or so-called common law. Without express legislative direction,
the courts were not prepared to find human rights violations to be either
immoral or illegal. Thus, in the area of race discrimination, the
Supreme Court of Canada consistently advanced the principles of freedom
of commerce and contract, no matter how flagrant the discriminatory result.
In Christie v. York Corporation,  S.C.R. 139,
a black man who had been refused service in a tavern claimed damages for
humiliation on the basis of the common law of tort. The Supreme
Court dismissed the mans claim and held that, on the basis of the
principle of freedom of commerce, merchants are free to deal as they choose
with an individual member of the public. In that same year, the British
Columbia Court of Appeal also held that anyone may conduct a business
in the manner best suited to advance his own interests, even if
that meant discriminating against patrons solely because of their race
Beginning in the 1930s,
however, some judges attempted to use the preamble to the Constitution
as a means of establishing a new route, over and above the established
common law, for protecting human rights in Canada. In the Alberta Press
Bill case, the Supreme Court of Canada was asked by the federal government
to determine the validity of a package of legislation enacted by the Social
Credit government of Alberta to bring the province out of the Depression.
Part of the legislation granted a government agency, the Social
Credit Board, the power to prohibit the publication of a newspaper, to
force a newspaper to print corrections of articles that the Board considered
inaccurate, and to prohibit newspapers from publishing articles written
by certain blacklisted persons. The rationale behind this portion
of the legislation was that the monetary reforms of the legislation as
a package would work only if the people believed in them. The Supreme
Court unanimously determined the matter on a jurisdictional or division-of-powers
basis, finding the legislation to be outside the powers of the provincial
legislature because it invaded the federal governments jurisdiction
over banking, interest and legal tender. What is significant about
the Courts decision, however, is that three of the justices also
perceived the legislation as being contrary to the constitutional guarantee
of freedom of the press.
Chief Justice Duff based
his civil liberties argument on the fact that the preamble to the Constitution
Act, 1867 implanted in Canada the civil liberties principles of the
United Kingdom, including freedom of the press and freedom of speech.
Moreover, because the Constitution establishes the House of Commons as
an elected and representative body, intended to work under the influence
of public opinion and discussion, freedom of the press is an essential
component of the principle of democracy.
The problem with the so-called
Duff Doctrine was it could not be squared with the doctrine
of legislative supremacy. As a result, it was not endorsed by the
majority of the Court. The acceptance of a legally enforceable
implied bill of rights would have meant a major restructuring of the Canadian
political system. It would have meant recognizing constitutional
principles of the United Kingdom, as enforced by judges. Such a judicial
enforcement of civil liberties could ultimately have limited the powers
of the legislatures and called into question the whole notion of legislative
supremacy. Moreover, because an implied bill of rights would consist
of abstract principles and judicial decisions about the nature of these
abstractions, it would be even less clear than a written bill of rights.
The Canadian judiciary at this time was naturally reluctant to embark
on such a bold and uncharted course. Instead, the Supreme Court
of Canada, even as the final court of appeal in Canada after 1949, ruled
in favour of civil liberties claims only on the basis of the division
of legislative powers.
THE BILL OF RIGHTS ERA
In the aftermath of the
Second World War, human rights became a central issue of concern both
at the international and the domestic level. Not only had Canadians witnessed
atrocities abroad, but the suspension of human rights for Canadians of
Japanese origin, the confiscation of their property and their forced internment
during the war had had a profound consciousness-raising effect on the
people of Canada with respect to the issue of human rights. It is worth
looking at the more important international human rights documents that
developed after the war, because their impact on domestic legislation
and practice in this area cannot be overstated.
The reality of the crimes
committed by the Nazi régime during the course of World War II was a catalyst
for the United Nations adoption of the Universal Declaration of Human
Rights in 1948. The principal aim of the document was to set
out, in general language, the basic rights to which all human beings ought
to be entitled. Among the rights proclaimed are the right to life, liberty
and security of the person, the right to privacy, the right to own property,
and the freedoms of expression, religion, movement, conscience, and peaceful
assembly. Although, as its name indicates, the Universal Declaration
was intended simply as a declaratory document not binding on members of
the United Nations, it has achieved the status of customary international
law and, as such, it has served to provide both the inspiration and starting
point for the numerous international human rights documents that have
In 1966, the United Nations
General Assembly supplemented the Universal Declaration with three additional
documents: the International Covenant on Economic, Social and
Cultural Rights, the International Covenant on Civil and Political
Rights, and the Optional Protocol to the International Covenant
on Civil and Political Rights. Together, these documents are
collectively known as the International Bill of Human Rights. The primary
effect of the 1966 instruments was to elaborate and extend the rights
expressed in the Universal Declaration and to establish machinery for
their enforcement through the United Nations. Canada was an active
leader in these human rights developments at the international level,
and it has since made serious efforts to ensure that such rights are protected
As a result of the emerging
public awareness of the need for human rights safeguards in Canada, and
the judiciarys obvious reluctance to take a stand on these issues,
it fell to the legislatures of the federal and provincial governments
to bring the countrys domestic law into line with its recent international
commitments. As noted earlier, the area of human rights was not
specifically catalogued under the division of legislative powers set out
in the Constitution Act, 1867. The closest the Act came to
providing for this area seems to be the federal power with respect to
peace, order and good government in section 91, and the provincial
power over property and civil rights in section 92. In view
of this overlapping jurisdiction, both levels of government entered the
field of human rights, although the initiative was principally taken at
the provincial level.
The first human rights
statute of the contemporary era was the Ontario Racial Discrimination
Act of 1944, which prohibited the publication, display or broadcast
of anything indicating an intention to discriminate on the basis of race
or creed. The significance of this pioneering statute is that, for
the first time, a legislature explicitly declared that racial and religious
discrimination was against public policy, so that the judiciary could
not simply subordinate human rights to the interests of commerce, contract
or property. In 1947, the Province of Saskatchewan enacted the first bill
of rights in Canada, which, in addition to anti-discrimination provisions,
also proclaimed such political liberties as the right to vote, freedom
of religion, speech and press, assembly and association, and freedom from
arbitrary arrest or detention. The major drawback to this ambitious
statute, however, was the lack of an effective enforcement procedure.
The Saskatchewan Bill of Rights was followed by the enactment in
various provinces of fair employment and fair practices legislation, which
contained enforcement mechanisms, though not full-time staff to administer
them. The combined effect of this legislation was to serve as the
prototype for modern provincial human rights codes.
At the federal level,
Prime Minister John Diefenbaker, a civil liberties advocate, was convinced
that Canada needed a national bill of rights that would have a superior
status to other laws. Unfortunately, he was unable to obtain the
broad provincial consensus required to entrench such a bill in the Constitution.
Instead, he was forced to settle for a bill that was an ordinary enactment
of Parliament and which applied only to matters under the jurisdiction
of the federal government. Diefenbaker believed, however, that
because of its very nature the courts would use such a bill to nullify
federal legislation that conflicted with its provisions.
The Bill of Rights,
which was enacted in 1960, is a relatively straightforward document.
Section 1 guarantees the right to life, liberty, security of the person
and enjoyment of property, unless deprived thereof by due process of the
law; the right to equality before the law and the protection of the law;
and the freedoms of religion, speech, assembly, association and the press.
Moreover, it provides that these rights and freedoms are to exist without
discrimination by reason of race, national origin, colour, religion or
Section 2 of the Bill
of Rights guarantees a number of rights that had already been developed
by judges through the common law to protect the civil liberties of an
individual when confronted with the judicial system. For example, all
Canadians have the right not to be arbitrarily detained or imprisoned.
No one can be arrested or detained without knowing the reason, and detainees
have the right to retain a lawyer without delay. Section 2 also
confirms the right to a fair hearing in accordance with the principles
of fundamental justice. Finally, the section contains a notwithstanding
clause, which provides that every law of Canada shall, unless expressly
declared otherwise, be construed and applied so as not to abrogate any
of the rights or freedoms recognized in the Bill of Rights.
The problem faced by the
judiciary was how, in a system of legislative supremacy, an ordinary statute
like the Bill of Rights could take precedence over other ordinary
statutes, particularly those enacted after it. Indeed, the judiciary
made it quite clear that it felt a great deal of uncertainty about applying
the statute because it did not constitute a constitutional mandate to
make judicial decisions with the effect of limiting the traditional sovereignty
of Parliament. In fact, with only one notable exception, the courts
consistently rendered the Bill of Rights ineffective in the promotion
and protection of human rights in Canada. Often, it was determined
that the Bill of Rights did not apply to a particular case on the
basis that the rights it could protect were only those that had existed
at the time of its enactment. In other words, the courts gave an
extremely narrow interpretation, often referred to as the frozen
rights concept, to the rights set out in the Bill of Rights.
In some cases, the courts simply refused to find any inconsistency
between its provisions and discriminatory provisions in federal legislation,
particularly as the legislation at issue was usually based on a valid
federal objective with which the courts felt they had no right to interfere.
It is not surprising,
then, that at the same time as the courts were giving short shrift to
the federal Bill of Rights, there was a flourishing of provincial
human rights legislation, the administration and application of which
was largely taken out of the hands of the courts and confined to administrative
agencies in the form of human rights commissions and tribunals.
The first human rights code to consolidate various anti-discrimination
provisions was adopted by Ontario in 1962. The Act prohibited discrimination
on the grounds of race, creed, colour, nationality, ancestry or place
of origin, and it established a commission and a full-time staff to administer
and enforce the law. The other nine provinces and two territories
soon enacted similar legislation. In 1977, the federal government
enacted the Canadian Human Rights Act, which had strictly federal
While there is today some
diversity among jurisdictions, the principles and enforcement mechanisms
of human rights legislation in Canada are essentially the same.
Each Act prohibits discrimination on specified grounds (such as race,
sex, age and religion) in respect of employment, accommodation and publicly
available services. The system is complaint-based in that a complaint
must be lodged with a human rights commission or council either by a person
who believes that he or she has been discriminated against, or by the
commission itself on the basis of its own investigation. If a complaint
is determined to be well founded, the commission generally attempts to
conciliate the difference between the complainant and the respondent.
Where conciliation fails, a tribunal may be formed to hear the case and
make a binding decision.
Despite the tremendous
success of human rights commissions in dealing with cases of discrimination,
concern exists today about the systems ability to deal effectively
with current human rights issues. For example, human rights institutions
were developed on the premise that discrimination is the direct result
of individual acts of bigotry. As a result, procedures set out in
the legislation are complaint-driven and individually focused in terms
of dispute resolution. Not only does this place a heavy burden on
the individual to bring forward and pursue an allegation of discrimination,
a process that can take years and exact a significant emotional toll,
but it has also resulted in commissions that are overburdened by an ever-growing
caseload. More important, however, is the claim that this individualized,
complaint-redress mechanism does not address adequately what is now generally
seen as the more pervasive, and possibly more detrimental, form of discrimination
that results from the unintended effects of system-wide patterns and practices.
From this standpoint, commissions should adopt a radically different and
more proactive approach to eliminating discrimination.
The jurisdiction of human
rights commissions is also severely limited in at least two respects.
First, human rights legislation expressly deals only with inequality in
the workplace and in the provision of public goods and services.
Given that international human rights instruments to which Canada is a
signatory do not limit guarantees of equality to any particular area of
activity, some concern has been expressed about whether commissions can
be an effective vehicle for the full realization of the rights and freedoms
to which our society is committed. In particular, domestic human rights
laws do not address the fact that human rights deprivations occur with
respect to the ability to access such basic needs as food, shelter, social
security and health care.
Secondly, human rights
commissions are essentially self-contained in the sense that their findings
are enforceable only by means of special procedures and remedies set out
in the legislation itself, and not by ordinary recourse through the court
system. As recently as 1981, the Supreme Court of Canada, still conditioned
to looking to the legislature for the ultimate answer, affirmed this restrictive
nature of human rights codes and thereby continued to lay the burden of
policy-making on the legislature. In the case of Board of Governors
of Seneca College of Applied Arts and Technology v. Bhadauria
(1981), 124 D.L.R. (3d) 193, the Court held that the Ontario Human
Rights Code must be interpreted as having been intended to restrict
the enforcement of its discrimination prohibitions to the measures established
by the Code itself, and not to vest any supplementary enforcement responsibility
in the courts. The decision effectively eliminated the argument
that the very existence of anti-discrimination legislation meant that
discrimination, in and of itself, could constitute a civil action for
damages before the courts.
Therefore, despite the
tremendous legislative initiative dealing with rights violations, the
system of human rights law in Canada developed in a peculiarly de-centralized
manner. Even with the establishment of a national Bill of Rights,
the general refusal by the courts in any way to weaken the political principle
of legislative supremacy, effectively denied Canadians the benefit of
a universally applicable human rights statute.
THE ADVENT OF THE CHARTER
By virtue of the Constitution
Act, 1982, the British Parliament ceased to have authority to legislate
for Canada; however, perhaps the most significant element of this historic
document is the Canadian Charter of Rights and Freedoms, which
guarantees Canadians fundamental rights and freedoms. While the
Charter represents a culmination of the Canadian trend away from the British
approach of an unwritten constitution as the preferred method of protecting
fundamental freedoms, a trend which began with the adoption of the statutory
Bill of Rights, it is important to note that most of the Charter
rights were already protected by statute or common law prior to 1982.
What is significant, then, is the enhanced legal status which the Charter
accords these rights simply by placing them in an entrenched constitution.
Moreover, section 52 of the Constitution Act, 1982 expressly states
that The Constitution of Canada is the supreme law of Canada and
any law that is inconsistent with the provisions of the Constitution is,
to the extent of the inconsistency, of no force or effect.
As a result, the Charter expressly modified the tradition of parliamentary
supremacy with the principle of constitutional supremacy and thereby ushered
in a whole new era of judicial review.
Thus, in 1982, the Canadian
courts finally received a clear mandate not only to determine whether
the laws passed by federal and provincial legislative bodies violate the
rights and freedoms granted by the Charter, but to strike down those which
do not conform to the Charters precepts. The question remains, however,
to what extent the courts will use their new role to alter the doctrine
of parliamentary supremacy and even the structure of federalism itself.
In order to answer this question properly, it is useful to study the rulings
of the Supreme Court of Canada, as it is this court that generally sets
the tone for the entire judicial system.
During the first years
of the Courts treatment of the Charter, a clear signal was sent
out that the Charter was to be given a large and liberal interpretation.
The Court emphasized that the task of interpreting a constitution was
crucially different from that of construing a statute such as the Bill
of Rights. In Hunter v. Southam Inc.,  2
S.C.R. 145, Chief Justice Dickson urged his fellow judges not to
read the provisions of the Constitution like a last will and testament
lest it become one. Charter interpretation, according to the Chief
Justice, must be generous rather than legalistic. These words were
equally matched by a boldness of decision-making. For example, while
section 32 of the Charter declared that its provisions applied to all
matters within the authority of Parliament and the legislatures of the
provinces, the Court in the 1985 Operation Dismantle case embraced
a broad concept of judicial review in its scrutiny of the federal Cabinets
decision to allow the testing of the cruise missile over Canadian territory.
While the Court held that the executive branch of the Canadian
government has a duty to act in accordance with the dictates of the Charter,
no violation of Charter rights was established in this case. As
well, in the area of legal rights, the Court used the Charter to alter
the Canadian criminal process away from a crime control model
to a more due process approach that protected the rights of
Perhaps the height of
the broad interpretive approach adopted by the Court in the first years
of the Charter was reached in the case of Reference Re Section 94(2)
of the Motor Vehicle Act,  2 S.C.R. 486. In that case,
the Court dealt with section 7 of the Charter, which guarantees 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.
The Court held that the principles of fundamental justice embraced a substantive
as well as a procedural due process requirement. Thus, an element of mental
intent is constitutionally required for any offence for which the accused
could be liable to the punishment of imprisonment. This meant that punishment
of an offence automatically on the basis of the act alone, without evidence
of intent, was unconstitutional. This decision ultimately had broad implications
for the crime of murder, which had traditionally included acts wherein
the accused must either have foreseen, or ought to have foreseen, death
as a probable, though unintentional, result.
Finally, it is worth noting
that the Courts initial nullification of 19 pieces of legislation
by way of the Charter is in sharp contrast with the Courts prior
exercise of deferential judicial review under the Bill of Rights,
pursuant to which the Court struck down only part of one statute, in fact
an obscure section of the Indian Act. In addition, not only
were the judges of the Supreme Court strongly activist in the first few
years of the Charter, but in virtually all cases they were also unanimous.
After about 1985, the
Court appeared to divide into two wings. The activist wing continued
to give broad and generous interpretations to Charter rights, while the
other wing adhered to the philosophy of deferring to the legislators and,
therefore, tended to limit the overall reach of the Charter. With
the considerable change in the composition of the Court after 1989, a
growing sense of caution and judicial self-restraint has appeared to permeate
the entire Court. A good illustration of this emerging trend is
found in the Courts 1992 decision in the case of Her Majesty
the Queen and Canada Employment and Immigration Commission v. Schachter.
In that case, the issue was the extent to which the courts have the power
to rewrite discriminatory laws so as to bring them into line with the
requirements of the Charter. Prior to November 1990, the Unemployment
Insurance Act provided parental benefits for men who were adoptive
parents but not for natural fathers. Mr. Schachter, a natural father,
challenged the law as being contrary to the section 15 equality guarantees
of the Charter. In a unique decision, the Federal Court of Canada,
Trial Division addressed the problem by reading the words natural
parent into the relevant section of the Act. The Court felt
that to declare the offending provision of the statute unconstitutional,
and thus of no force or effect, would take a benefit away from others
but would not guarantee the positive right to equality envisioned by section
15 of the Charter.
On appeal, the Supreme
Court considered the appropriateness of judicial lawmaking. The
Court made it clear that judges who rule that laws violate Charter guarantees
must always be careful not to overstep their bounds and intrude into the
legislative sphere. While it may be possible for the courts to remedy
legislation that is otherwise under-inclusive, this should be done only
where it will clearly not substantially alter the nature of the social
program at issue. In most instances, however, it is preferable to
allow Parliament or a provincial legislature to formulate the solution
to these constitutional problems, particularly where, as in this case,
the appropriation of public funds is involved. Therefore, the Court
decided that, without a mandate based on a clear legislative objective,
it would be inappropriate to read in the excluded class of persons under
the Unemployment Insurance Act. The better course would be
to declare the provision invalid but suspend that declaration to allow
the relevant legislative body to weigh all the factors in amending the
statute so as to meet its constitutional obligations. Such a declaration
was unnecessary in this case, however, given that Parliament had amended
the legislation in 1990 to provide equal benefits to natural fathers,
before the Supreme Court rendered its decision in the matter.
In assessing the recent
changes in the Court, it is useful to keep in mind the nature of judicial
policy-making that is involved under the Charter. Essentially the courts
make human rights policies in two ways. The first is to define the
specific content of the rights and freedoms enshrined in the Charter.
For example, it must be determined whether the right to life
covers a fetus and whether equality encompasses economic and social rights.
Secondly, the courts must decide whether a government objective that violates
a right, once it is defined, can be considered justified pursuant to section
1 of the Charter. Section 1 applies to all rights and freedoms under the
Charter and subjects them to such reasonable limitations prescribed
by law as can be demonstrably justified in a free and democratic society.
Therefore, section 1 involves a highly discretionary balancing test between
the policy interests of government and the interest in the Charter litigant
in having his or her rights upheld. It is important to recognize
that section 1 represents one of two concessions to parliamentary sovereignty
under the Charter. The second is section 33 (the notwithstanding
clause), which permits the federal and provincial legislatures to
enact laws which violate some, but not all, of the rights and freedoms
enumerated by the Charter, but only for a maximum period of five years.
It is with respect to
the balancing test under section 1 of the Charter that the judicial ideology
of the Court has changed the most. Initially, a rather strict approach
was taken whereby the government had to prove that the law or government
action at issue was sufficiently important to override a Charter right
and that the means adopted to attain that objective were reasonable and
demonstrably justified. Members of the Court have now moved towards
a more flexible approach requiring a less stringent fulfilment of the
section 1 requirement in certain cases. Some would even argue that in
recent equality cases the Court has seemed to withdraw from its activist
approach to interpreting the substantive content of rights proclaimed
under the Charter. Indeed, it would appear that some justices are
even applying section 1 analyses while determining whether a Charter right
has been infringed in the first instance. As a result, it has been
contended that the scope of rights and freedoms under the Charter has
been watered down and that the burden on government to defend its actions
has lessened significantly.
A number of explanations
have been advanced for the Courts shift away from its more aggressive
approach to the application of the Charter. Some contend that the
Court is simply being careful not to tread on what it sees as clear exercises
of legislative power. According to this view, innovative and creative
change, particularly in the social and economic fields, should come not
from the judiciary but from elected legislators who are better equipped
to assess the full gamut of policy alternatives. This may explain
why the Court now appears to uphold Charter rights more often in areas
where it feels most comfortable, such as cases involving the criminal
trial process. Others, however, argue that members of the Court
have simply come to the realization that the balancing of individual and
societal interests in a rapidly changing world does not lend itself easily
to the application of neutral judicial principles. Thus, individual
justices are being forced to rely on their own reasoning processes rather
than conventional judicial wisdom.(4)
Court activism in the
Charter era has led to assertions that non-elected judges are making significant
policy decisions and this has led to allegations of anti-democratic judicial
behaviour and queries about the way Supreme Court judges are appointed.
Reference is made in this regard to the recent Supreme Courts decisions
in Vriend v. Alberta (Attorney General),  1 S.C. R.
493; M. v. H.,  1 S.C.R. 493; Degamuukw v.
British Columbia,  3 S.C. R. 1010; and Eldridge v.
British Columbia (Attorney General),  3 S.C.R. 624.
In the Vriend decision, for example, the Court ruled that the omission
in Albertas Individual Rights Protection Act of sexual orientation
as a prohibited ground of discrimination denied gay and lesbian individuals
their equality rights under section 15 of the Charter. In order
to remedy this under-inclusiveness, the Court read the words sexual
orientation into the relevant provisions of the legislation.
In Eldridge, the Court held, also on the basis of the equality
guarantees of section 15 of the Charter, that the government of British
Columbia was required to provide sign language interpreters for deaf persons
receiving medical services. Critics have gone so far as to call
on governments to invoke the Charters notwithstanding clause
to legislatively override these controversial decisions.
Also of concern is the
fact that governments themselves are fuelling judicial activism by deferring
to the courts issues that they perceive as being too controversial to
handle themselves. As well, an increasing number of Canadians, disillusioned
by the perceived inability of government to address Charter issues, are
asking the courts to effect social and economic change. According
to F.L. Morton and Rainer Knopff, authors of The Charter Revolution
and the Court Party,(5) interest-group
litigants, such as the Canadian Civil Liberties Association and the Womens
Legal Education and Action Fund, have been particularly active in constitutionalizing
their policy preferences by intervening in Supreme Court Charter cases.
Indeed, Morton and Knopff contend that the Court has effectively been
hijacked by such interest groups.(6)
One response to these
concerns is that, in rendering decisions under the Charter, the Court
is still simply exercising its powers of judicial review. The judiciary
has not engaged in second guessing or re-ordering of government priorities
in Charter cases to date. Rather, it has applied a set of established
principles under section 1 of the Charter to determine whether challenged
policies and regulations interfere with the lives of individuals more
than is absolutely necessary under the law. This sometimes requires
looking at laws that were made in the past and putting them into context.
Thus, an expansive interpretation of human rights constitutional law does
not necessarily mean that the Court has become politicized.(7)
Furthermore, it is argued
that judicial review under the Charter is not a veto over the politics
of this nation, but rather the commencement of a dialogue between the
courts and the legislatures as to how best to reconcile individual values
guaranteed by the Charter with the social and economic policies that are
necessary for the benefit of Canadian society as a whole. Decisions
that strike down legislation on Charter grounds have generally left the
door open for an alternative or substitute law to be re-enacted that allows
for the exercise of democratic will, but with some new safeguards to protect
individual rights and liberties.(8) The Chief Justice of the Supreme Court
of Canada recently agreed with this dialogue theory on the
relationship between the courts and the legislature under the Charter.
She stated that we dont consider ourselves the final word
on things. We rule on the legal question that is put before us,
and then the matter goes back to Parliament and the legislatures take
it up. Usually, they amend the law or re-enact it or whatever to
remedy the constitutional defect.(9)
Finally, the role of government
and the legislators has also changed with the arrival of the Charter.
Pursuant to section 4.1 of the Department of Justice Act, the Minister
of Justice must now examine all government bills introduced in the House
of Commons to ensure they are consistent with the Charter. Furthermore,
even before the bills reach the House, at the policy development stage
of legislating, government lawyers are now routinely involved in identifying
and assessing the Charter implications of any proposed law. Legislation
which may seem to run counter to the rights and freedoms protected by
the Charter must be carefully rationalized and backed by solid policy
arguments and evidence. Thus, the struggle to weigh and balance
policy interests is an evolving skill in the legislative, as well as the
As a result of a federal
structure with a division of legislative powers, plus a constitutional
revision in 1982, human rights in Canada are both entrenched in the Constitution
and safeguarded in legislation at the federal, provincial and territorial
levels. The creation of the Charter did not eliminate existing human
rights legislation or diminish its importance. To the contrary,
not only does the Charter itself in section 26 guarantee the continuation
of existing rights and freedoms in Canada, but the advent of the Charter
also had the profound effect of freeing the courts from the constraint
of the doctrine of parliamentary supremacy in the interpretation and enforcement
of human rights statutes. In the post-Charter era, both the Bill
of Rights and federal and provincial human rights legislation were
given quasi- constitutional status by the Supreme Court and
this has served to place them above ordinary legislation.
Thus, the Bill of Rights
continues in force in Canada and its importance lies in those provisions
which the Charter does not duplicate for example, the right to
the enjoyment of property (section 1(a)). Federal and provincial
human rights statutes also continue to play a significant role in the
promotion and protection of human rights because they are concerned with
private acts of discrimination, whereas the application of the Charter
is limited to governmental action. However, because human rights
legislation is law, the reach of the Charter may well extend to private
acts of discrimination through judicial interpretations of the prohibited
grounds of discrimination and any statutory exceptions to such prohibitions
found in these statutes. Moreover, just as decisions rendered under
the Charter will be used in human rights hearings, so too will human rights
decisions be used in interpreting the Charter. While it may seem odd to
speak of the effect of a federal or provincial statute on a constitutional
instrument such as the Charter, human rights legislation in Canada has
a history of significant decisions that have been useful tools in Charter
The Charter, the Bill
of Rights and federal and provincial human rights laws, in conjunction
with the legislators duty to comply with the Charter and the courts
role in ensuring such compliance, all combine to provide Canadians with
a comprehensive scheme of human rights promotion and protection.
Yet, as was mentioned at the beginning of this paper, human rights systems
are shaped largely in response to variables that are specific to time
and culture. Canada is certainly a very different nation from what
it was at the time of Confederation. In an age of rapid technological
advancement and globalization, public cynicism and individual and community
feelings of insecurity, this countrys human rights scheme will undoubtedly
be the subject of re-examination and re-assessment over the coming years.
At the same time, judicial activism will continue to be a subject of much
debate as the courts seek to define the parameters of their role relative
to that of the executive and legislative branches of government.
Cholewinski, Ryszard I.,
ed. Human Rights in Canada: Into the 1990s and Beyond.
Human Rights Research and Education Centre, University of Ottawa, Ottawa,
Dawson, Mary. The
Impact of the Charter on the Public Policy Process and the Department
of Justice. Osgoode Hall Law Journal, 30:3, Fall 1992,
Greene, Ian. The
Charter of Rights. James Lorimer & Company, Toronto, 1989.
The Charter of Rights and the Legalization of Politics in Canada.
Wall & Thompson, Toronto, 1989.
McLachlin, Beverly M.
The Role of the Court in the Post-Charter Era: Policy-Maker
Adjucator. 39 University of New Brunswick Law Journal
Morton, F.L., Russel,
P.H. and Withey, M.J. The Supreme Courts First One Hundred
Charter of Rights Decisions: A Statistical Analysis.
Osgoode Hall Law Journal, 30:1, Spring 1992, p. 1.
Pentney, William F.
Discrimination and the Law. De Boo Publishers, Don Mills,
the Second World War, it was the inability of the United Nations to reconcile
these rights into a single comprehensive human rights covenant that led,
instead, to the creation of two covenants: the International
Covenant on Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights.
more on this point, see Wolfgang Koerner, Human Rights: Toward
A Common Understanding, Background Paper, Library of Parliament,
For greater detail on the generation of rights theory, see Pierre
Arsenault, Human Rights and Canadian Solidarity, paper prepared
for the National Conference on Human Rights and Canadian Solidarity, Human
Rights Research and Education Centre, Ottawa, December 1990.
For a more in-depth discussion of the current trend of Charter
decision-making by the Supreme Court see Patrick J. Monahan The
Supreme Court of Canada in the 21st Century, The Canadian
Bar Review, Vol. 80, June 2001, p. 374-98; Errol P. Mendes, The
Crucible of the Charter: Judicial Principles v. Judicial Deference
in the Context of Section 1, in The Honourable Gérald-A. Beaudoin
and Errol Mendes, eds., The Canadian Charter of Rights and Freedoms,
3rd ed., Carswell, Toronto, 1996; Tom Denholm, Heart of Oakes:
The Supreme Court of Canada and the Charter, Gravitas, Vol.
2, Spring 1995, p. 27-32; and Leon E. Trakman, Section 15: Equality?
Where?, Constitutional Forum, Vol. 6, 1995, p. 112-126.
the Supreme Court of Canada has denied any suggestion that it has been
hijacked by special interest groups, steps have been taken of late to
reduce access to the Court by intervenors. It is felt that the Court
has acquired sufficient expertise on the systemic implications of the
Charter. (see Rein In Lobby Groups, Senior Judges Suggest,
National Post, 6 April 2000).
more on this issue see Gail J. Cohen, Cory urges respect, tolerance
at gay lawyers meeting, Law Times, Vol. 11, No. 5,
7 Febuary 2000, p. 4. David Beatty, The Canadian Charter
of Rights: Lessons and Laments, The Modern Law Review,
Vol. 60, July 1997; Susan Lightstone, Seismic Shocks or Healthy
Tension: The Charter of Rights and Freedoms 15 Years Later,
National, Vol. 6, No. 5, August-September 1997; F.L. Morton, The
Charter Revolution and the Court Party, Osgoode Hall Law Journal,
Vol. 30, 1992, Chief Justice Brian Dickson (retired); The Canadian
Charter of Rights and Freedoms: Dawn of a New Era?, Review
of Constitutional Studies, Vol. 2, No. 1, 1994; and Robert
E. Hawkins and Robert Martin, Democracy, Judging and Bertha Wilson,
McGill Law Journal, Vol. 41, 1995.
Hogg and A. Bushell, The Charter Dialogue Between Courts
and Legislatures, 1977, Vol. 35, Osgoode Hall Law Journal,
Rein In Lobby Groups, Senior Judges Suggest, National
Post, 6 April 2000.