Canadian Charter of Rights: Application and Limitations
The Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms guarantees certain basic rights and freedoms. It limits the law-making power of legislatures and the decision-making powers of courts. In some cases, it can be used to prevent abuse and unfairness in administrative actions and delegated law-making.
Courts can use the Charter to:
- Strike down or amend statutes that violate Charter rights.
- Invalidate a statutory provision that weakens fairness protections.
- Read into a statute a requirement to follow a procedure not explicitly provided for.
Application of the Charter (Section 32)
Section 32 defines the scope of the Charter’s application.
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.
Application to Government Bodies
The Charter applies to the Parliament and Government of Canada, as well as the legislature and government of each province. This includes ministries and departments of the government and how they carry out delegated functions such as regulation and adjudication.
Application to Other Statutory Bodies
Under Section 32, the Charter may also apply to other bodies established by statute that regulate trades and professions (e.g., law societies) or that carry out public functions and rely on public funding (e.g., hospitals). To decide if the Charter applies, courts determine the amount of government control over the body and whether its functions are essentially governmental in nature.
Application to Courts and Common Law
The Charter also applies to courts themselves regarding rights that require or prohibit action by the court (e.g., the right to a trial within a reasonable time, the right of a defendant not to be compelled to testify). A higher court may overrule a lower court’s decision because it violates the Charter.
If the government relies on a common law rule that violates the Charter, courts may find that rule invalid. For example, a common law rule preventing a wife from testifying against her husband could be overruled if she is separated and wishes to testify, based on her right to freedom of expression.
However, the Charter does not apply to disputes between private persons. Courts will not find a common-law rule invalid in a private dispute on the basis that it violates the Charter. For instance, while the common-law rule against defamation may restrict freedom of expression, courts can still apply it in private litigation because the Charter is not applicable.
The Notwithstanding Clause (Section 33)
Section 33, commonly known as the “notwithstanding clause,” allows Parliament or a provincial legislature to temporarily override certain Charter rights.
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).