The Canadian Charter of Rights: Lessons and Laments
| Date | 01 July 1997 |
| Author | David Beatty |
| DOI | http://doi.org/10.1111/1468-2230.00094 |
| Published date | 01 July 1997 |
The Canadian Charter of Rights: Lessons and Laments
David Beatty*
For common law countries like the United Kingdom, Australia and New Zealand,
that continue to debate whether to build the constitutional framework of their
systems of government around a written Bill of Rights, it is natural to look to
Canada and to reflect on its experience with its Charter of Rights and Freedoms.
The common colonial connections, legal traditions and political cultures make the
Canadian approach to judicial review particularly pertinent. Moreover, it is now 15
years since the Charter was entrenched, so a significant body of jurisprudence has
been built up that gives a very clear picture of what judicial review has meant to
ordinary Canadians and how it has altered the relationship between the courts and
the other two elected branches of government.
Two features of the Canadian account of constitutional rights stand out from all
the rest. In the first place, the nine judges in Ottawa have come to rely on the same
set of principles and analytical framework to test the constitutional validity of the
various rules and regulations they are asked to review as are used by their brethren
in Washington, Tokyo, New Delhi, Strasbourg, Rome, Karlsruhe, etc.
1
The
Supreme Court of Canada has read the Charter in the same way Bills of Rights
have been interpreted all over the world, to include two broad principles of
rationality (also known as necessity or avoidability) and proportionality (also
known as consistency or equality) which politicians and public officials are obliged
to respect. For those (sceptics, cynics, etc) who need it, the jurisprudence of the
Supreme Court of Canada provides yet another body of hard, empirical evidence
that there is a set of neutral (viz formal) principles (of distributive justice), which
lie at the core of the concept of constitutional rights, that allow judges to act out
their role as ‘guardians of the constitution’ in an objective, determinate and
ultimately very democratic way.
If rights, defined as principles and duties, is the theoretical story which runs
through the first 15 years of Canadian constitutional law, deference and caution —
two other characteristically Canadian attributes — describe the way it has actually
been practised on the Bench. At the same time that Canadian constitutional law
teaches that there are universal principles and common ideas that are embedded in
all constitutional Bills of Rights, it also makes it very clear that, as a practical
matter, it is up to each individual judge to decide how much these principles will
actually protect people’s basic human rights.
2
Chief Justice Hughes’ much-cited
aphorism that, in the United States, ‘The constitution is what the judges say it is,’
applies as much above as it does below the 49th parallel.
The Modern Law Review Limited 1997 (MLR 60:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 481
* Faculty of Law, University of Toronto.
This essay was originally presented at the Conference on Rights and Democracy in Canada and the UK,
University of Warwick, 17 May 1997.
1 Some of the similarities in the ways these courts have approached constitutional (or international)
Bills of Rights can be seen in the essays collected by D. Beatty (ed), Human Rights and Judicial
Review: A Comparative Perspective (Dordrecht: Martinus Nijhoff, 1994).
2 I have tried to describe the theoretical and the practical themes that distinguish Canadian
constitutional law more fully in Constitutional Law in Theory and Practice (Toronto: University of
Toronto Press, 1995).
Sadly, for human rights activists, most of those who have been appointed to the
Supreme Court of Canada have been more inclined to find ways to avoid having to
apply the principles of rationality and proportionality, or at least to mute their
effect, than using them to hold politicians and public officials to account.
Consequently, for the most part, as a story about the protection of basic human
rights, Canada’s version makes for a very discouraging read. However, as in life,
so in the law, there are important lessons to be learned from Canada’s adolescence
as a constitutional democracy even if most Canadians remain blissfully unaware
what they are.
3
The theory of Canadian constitutional law
Although the theoretical and practical themes that permeate Canadian
constitutional law are part of a single story, and are inextricably interlinked, they
enlighten us in different ways and so warrant separate treatment on their own.
Because, both in logic and in time, the theory came before the practice had been
firmly established, it is appropriate to look at it first.
Perhaps the most striking aspect of the theoretical side of Canadian constitu-
tional law is how quickly and easily the Supreme Court was able to discern its
broad parameters and describe it in analytical terms. In less than two years from
when it handed down its first Charter decision,
4
and even though it made almost no
reference to the way constitutional rights are protected in other countries with long
histories of judicial review,
5
the Court had the basic analytical framework in place.
In its landmark ruling, RvOakes,
6
the Court announced that the process it would
use to test the validity of whatever rule or regulation it was asked to review could
— indeed should — be divided into two separate stages or parts.
In the first phase of the review process, those challenging the constitutionality of
whatever law or ruling they bring to the Court are given the floor and told to meet a
two-pronged burden of proof. First, they are required to show that the interest or
activity for which protection is sought falls within one of the rights and freedoms
which the Charter guarantees. Secondly, they have to establish that the law does
limit or impinge on their constitutional rights as a matter of fact. Where a
challenger cannot prove either the interpretive or the factual basis of the claim, the
case will be dismissed and the constitutional validity of the law affirmed.
Where challengers are able to prove that their constitutional rights have been
violated in some way, the Court moves on to the second stage of the review process
and it is the government’s (and anyone else defending the law)
7
turn to talk. To
justify a limitation on a person’s constitutional rights, it must be shown that the
relevant government action or agency is pursuing a pressing social objective and
that it is doing so by means of a policy instrument that impairs the rights involved
3 Public opinion surveys consistently show that most Canadians believe that the Supreme Court is
doing a good job ensuring their rights are respected.
4 The Court’s first Charter decision, Skapinker vLaw Society of Upper Canada (1984) 9 DLR (4th)
161, was handed down on 3 May 1984.
5 Although US authorities are frequently referred to by the Court, it has, for the most part, treated
them very cautiously and usually as not being very helpful in fashioning solutions that are
appropriate for Canada. See Constitutional Law in Theory and Practice, n 2 above, 63–64.
6 (1986) 26 DLR (4th) 200.
7 Typically, in cases in which the Court is asked to review an important piece of legislation, interest
groups and others with a special expertise on the issues are allowed to intervene. For a discussion of
the Court’s approach to interventions, see Re Workers’ Compensation Act (Nfld) [1989] 2 SCR 335.
The Modern Law Review [Vol. 60
482 The Modern Law Review Limited 1997
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