The Constitution and the Charter of Rights and Freedoms

The rulebook for the rule-makers

Every club has rules. But who makes sure the rule-makers play fair? In Canada, that is the job of the Constitution. It sets up the institutions of government, divides power between governments, protects rights, and is the supreme law: section 52 of the Constitution Act, 1982 says any law inconsistent with it has no force or effect.

Canada's Constitution is not one document. It includes written acts (above all the Constitution Act, 1867 and the Constitution Act, 1982), plus unwritten conventions and principles that courts have recognized, such as democracy, federalism, the rule of law and the protection of minorities.

Foundational documents that shaped the Constitution

Magna Carta (1215). English barons forced King John to accept limits on royal power. Its key idea: the ruler is under the law, and free people cannot be imprisoned or punished except by lawful judgment or the law of the land. These ideas grew into the rule of law and due process, and they echo in the Charter's legal rights, such as the right not to be arbitrarily detained (section 9) and the right to have a court check whether a detention is lawful (section 10).

English Bill of Rights (1689). Strengthened Parliament over the monarch: for example, the monarch could not raise taxes without Parliament's consent. This is a root of parliamentary democracy.

Royal Proclamation of 1763. Recognized that Indigenous nations held rights to their lands and set rules that land could be acquired only by the Crown through agreements. The Charter's section 25 names it, protecting Aboriginal and treaty rights.

British North America Act, 1867 (now the Constitution Act, 1867). Created the Dominion of Canada as a federation; set up Parliament and the provincial legislatures; divided powers in sections 91 and 92; protected denominational (religious) school rights that existed at Confederation in section 93 (one reason Ontario still has publicly funded Catholic school boards); and required English and French in Parliament and federal courts (section 133). It said very little about individual rights. It was renamed in 1982.

Statute of Westminster (1931). Gave Canada full legal independence to make its own laws, but Canada could not yet amend its own Constitution without the British Parliament, because federal and provincial governments could not agree on a formula.

Canadian Bill of Rights (1960). Passed under Prime Minister John Diefenbaker, it listed rights such as equality before the law and freedom of religion, speech and assembly. But it was an ordinary federal law: it applied only to federal laws, not provincial ones, and Parliament could change it like any other law. Courts used it cautiously. Its weaknesses convinced many people that rights needed constitutional protection.

Constitution Act, 1982. Patriated the Constitution, added an amending formula, added the Charter of Rights and Freedoms, and in section 35 recognized and affirmed Aboriginal and treaty rights. Queen Elizabeth II proclaimed it in Ottawa on April 17, 1982. The federal government and nine provinces agreed; Québec's government did not, an issue that still matters in Canadian politics.

Inside the Charter

• Section 2, fundamental freedoms: conscience and religion; thought, belief, opinion and expression, including freedom of the press; peaceful assembly; association.
• Sections 3 to 5, democratic rights: every citizen's right to vote and run for office; elections at least every five years; legislatures must sit at least once a year.
• Section 6, mobility rights: citizens can enter, stay in and leave Canada, and move to and work in any province.
• Sections 7 to 14, legal rights: life, liberty and security of the person (section 7); protection from unreasonable search (8) and arbitrary detention (9); rights on arrest, including to know why and to get a lawyer (10); rights when charged, including the presumption of innocence (11); protection from cruel and unusual punishment (12); and the right to an interpreter (14).
• Section 15, equality rights: equal treatment without discrimination based on, for example, race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. Courts have added other grounds, such as sexual orientation. Section 15 also allows programs that help disadvantaged groups.
• Sections 16 to 23, language rights: English and French are Canada's official languages; section 23 gives minority-language education rights (for example, French-language schools for eligible families in Ontario).
• Section 24, enforcement: anyone whose rights are violated can ask a court for a remedy.
• Section 28: rights are guaranteed equally to men and women.
• Section 32: the Charter applies to governments (Parliament, legislatures, and government bodies like police, public schools and municipalities), not to private businesses or individuals. Discrimination by a private store or employer is covered instead by human rights codes, such as the Ontario Human Rights Code.

Limits and overrides

Section 1, reasonable limits. Rights can be limited only by law, and only if the government can show the limit is reasonable and justified in a free and democratic society. Courts ask, roughly: Is the goal pressing and important? Is the limit connected to that goal? Does it limit the right as little as reasonably possible? Do the benefits outweigh the harm? (This test comes from a 1986 Supreme Court case, R. v. Oakes.)

Section 33, the notwithstanding clause. Parliament or a provincial legislature can declare that a law will operate notwithstanding section 2 or sections 7 to 15. The declaration expires after five years unless renewed. It was a compromise in 1981 to win provinces' agreement. Supporters say it keeps final say with elected representatives; critics say it lets governments override rights too easily. Its use has become more frequent in recent years, including by Ontario and Québec.

Section 15 timing: equality rights took effect in 1985, three years after the rest, to give governments time to change their laws.