HUMAN RIGHTS AND EQUITY SERVICES NEWSLETTER April 2005
The Charter of Rights and Freedoms – A Brief History
What Happens When A Right or Freedom is
A s part of his effort to “repatriate” the Canadian Constitution in
the late 1970s and early ‘80s, then Prime Minister Pierre Elliott
Trudeau decided that the existing Canadian Bill of Rights needed to
Charter rights and freedoms may be breached by agents of the
be revamped and strengthened. The result was the creation of the government in two major ways:
Canadian Charter of Rights and Freedoms (commonly known as
“the Charter”). • by passing legislation which has the purpose or the effect of
unreasonably limiting a right or freedom; or
The Charter came • by taking an action that unreasonably infringes on the rights or
into force on April freedoms of an individual.
17, 1982 and
changed, for better In the first instance, the passing of legislation that breaches the
or worse, the face of Charter, the remedy is that the impugned law is either struck down
Canadian law (and or amended by the court to comply with the Charter.
Canadian society as
a whole) forever. The second instance, the taking of an action that breaches the
Three years later, on Charter, most often involves criminal or quasi-criminal situations.
April 17, 1985, The most common is where a police officer is argued to have
Section 15 of the breached the rights of a person accused of a crime in some way – by
Charter, which subjecting her to unreasonable search or seizure, by failing to
guarantees equality provide timely access to legal advice or by conscripting the person
rights, came into unreasonably to provide evidence against herself, etc. In such cases,
force – its the remedy is often the exclusion from the person’s trial of evidence
implementation had been delayed to allow the federal and that was obtained by the police as a result of the Charter breach. See
provincial governments time to bring their own laws into the seminal cases of R. v. Therens  and R. v. Collins  on
compliance with the Charter. the exclusion of evidence.
What Is the Charter? The Charter has been in force for 23 years now and, so far, more
The Charter is part of the Constitution of Canada, the law from than 300 Canadian laws have been struck down or amended by
which all other laws spring and against which all other laws are courts in order to comply with the Charter. The number of criminal
judged. If a given piece of legislation fails to comply with the or quasi-criminal cases affected by Charter arguments is beyond
terms of the Constitution and the Charter, that piece of count.
legislation is of no force and effect.
F . Y . I . FOR YOUR INFORMATION
The Charter sets out those rights and freedoms that Canada, as a
society, believes are fundamental to the workings of a free and
democratic society. These rights and freedoms include the
The Charter does not apply to Universities.
It is important to remember that the Charter applies
• freedom of expression, religion, and association only to interactions between the government (at all
• the right to life, liberty and the security of the person levels) and individuals. It does not apply to interactions between
• the right to vote one individual and another, nor between non-governmental
• the right to live anywhere in Canada institutions or organisations and individuals – that is the purview of
• the right to be free from unreasonable search and seizure Human Rights Codes (see the case known as Dolphin Delivery
• the right to be treated equally under the law. ). As a result, to date no court has ruled that the Charter
The Charter also includes protections for the rights of Aboriginal applies to Universities in their interactions with students, staff or
persons in Canada and for minority (French) languages. faculty.
learn, work and live in a climate of equality and respect
Are there limits to the Religious Holidays
Charter’s Rights and Freedoms? April
Charter rights are not absolute. Section 1 of the document states
clearly that the rights and freedoms set out therein are “subject only Baha’i
to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society”. The case of R. v. Oakes 9 Jalál
 set out the process by which the courts determine whether or 21 - May 2 Ridvan
not a legal limit is demonstrably justified. Courts have been wary of 28 Jamál
limiting Charter rights and freedoms. 29 Ninth Day of Rivdan
6 Charter Decisions That Have
Changed Canada 13-14 Saka New Year
Singh v. Minister of Employment and Immigration  was
a significant early decision because, in it, the Supreme Court of Z Christianity
24 Palm Sunday (Eastern)
Canada found that the Charter applies to every person in Canada,
28 Holy Thursday (Eastern)
including citizens, those seeking status and even illegal immigrants.
29 Holy Friday (Eastern)
As a result, the government must respect the basic rights of all
persons in the country, regardless of their citizenship status. Hinduism
Big M Drugmart  was the first case in which the Supreme
Court of Canada recognised that Canadian society is largely 9 Bikarami Samvat 2062
constructed along the tenets of the Christian religion. In this case, (New Year’s Day)
the Court struck down a law (The Lord’s Day Act) that required 13 Vaisakhi
businesses to close on Sundays. (First Day of the Solar Year)
R. v. Morgentaler  was decided on the grounds of 17 Ramanavami
protecting the mother’s right to life, liberty and the security of the
person. In this case, the Court decided that a woman’s right to life,
liberty and security of the person included the right to obtain an 20 Mawlid al-Nabiy
R. v. Seaboyer  created huge controversy because, in it, the Judaism
Supreme Court struck down the “Rape Shield Law”, a law designed 24 - May 1 Pesah (Passover)
to ensure that the previous sexual history of the complainant was
not used against her in a sexual assault trial. The Court decided that Sikhism
the law represented an unreasonable interference with the accused’s 14 Vaisakhi
right to a fair trial and right to give full answer and defence to
charges against him.
Andrews v. Law Society of B.C.  extended the protection
of section 15 of the Charter (equality rights) to groups that were
“similarly situated” to those listed in the section and, further, that
Upcoming HRES Events:
prohibited discrimination could involve unintentional, systemic or
structural discrimination. The “3Rs”
Vriend v. Alberta  saw the Court extend the protections of
a provincial human rights code to include protection against
Rights, Responsibilities, Respect:
discrimination on the basis of sexual orientation. This is one major Preventing Harassment & Discrimination
decision in the movement towards ensuring equal rights for Tuesday, April 26, 10 a.m.-Noon
members of the GLBT community. John Hodgins Engineering Bldg., Room A114
R. v. Sparrow  was a key decision with regard to the
protection of Aboriginal treaty rights under section 35 of the Charter.
Unfortunately, it was also not a very clear decision. It apparently
What’s in A Word?
endorses the government’s power to unilaterally extinguish Wednesday, May 18, 1 - 3 p.m.
Aboriginal treaty rights (provided the government shows a clear Michale DeGroote School of Business, Room 227
intention to do so) while also stating that governments hold a To Pre-Register and for more information, please call:
fiduciary relationship to Aboriginal Peoples and must ensure that Elaine Hay @ Ext. 27581
Aboriginal interests are a high priority in any decision that might Email: email@example.com
affect Aboriginal communities.
Human Rights and Equity Ser vices • McMaster Univer sity Student Centre Room 212
Phone: 905.525.9140 ext.23641 • www.mcmaster.ca/hres • firstname.lastname@example.org
Respectives is published monthly in pr int and PDF downloada ble for mats by HRES.