The Charter, and where it stops

Word	What it means
Constitution	A country's highest law. A law that conflicts with it can be struck down.
Charter of Rights and Freedoms	The part of the Constitution Act, 1982, that lists the rights and freedoms of people in Canada.
Entrenched	Written into the Constitution, so an ordinary law cannot change it.
Individual rights	Rights each person holds, such as freedom of expression or the right to vote.
Fundamental freedoms	Section 2: conscience and religion; thought, belief, opinion and expression; peaceful assembly; association.
Equality rights	Section 15: equal treatment under the law, without discrimination because of race, national or ethnic origin, colour, religion, sex, age or disability, among other grounds.
Reasonable limits	Section 1: a right can be limited by law if the limit can be justified in a free and democratic society. Courts decide whether it can.
Notwithstanding clause	Section 33: lets a legislature pass a law that operates despite section 2 or sections 7 to 15. It lapses after five years unless passed again.
Human rights legislation	Ordinary laws, such as the Alberta Human Rights Act, that ban discrimination by employers, landlords and businesses.
Read in	When a court adds words to a law to make it fit the Charter, instead of striking it down.

Sections	Rights	For example
2	Fundamental freedoms	Publishing a paper that criticizes the government
3–5	Democratic	Every citizen may vote and run for office
6	Mobility	Moving from Nova Scotia to Alberta for a job
7–14	Legal	A lawyer without delay when arrested
15	Equality	Equal treatment regardless of sex or disability
16–23	Language	Federal services in English or French; minority-language schools (Unit 4)

Entrenched. The 1960 Canadian Bill of Rights was an ordinary federal law, and courts rarely used it to strike anything down. The Charter is part of the Constitution: a law anywhere in Canada that breaks it can be struck down.

Whom it binds. Section 32 applies the Charter to governments and what they control — police, public schools, governments as employers. If a private company refuses to hire you because of your religion, the Alberta Human Rights Act protects you. But human rights laws must themselves obey the Charter, which is how the Charter reached private workplaces, as part 3 shows.

Section 1. Jim Keegstra, a high school teacher in Eckville, Alberta, taught his students antisemitic falsehoods and was charged under the Criminal Code's law against promoting hatred. He argued that the law violated his freedom of expression. In 1990 the Supreme Court agreed that it limited his freedom — and ruled the limit reasonable in a free and democratic society. That is the two-step: first, is a right limited? Then, is the limit justified?

Section 33. It cannot touch democratic, mobility or language rights, and it lapses after five years unless re-passed, which puts the question back in front of voters. In 1988, after the Supreme Court struck down Québec's rule that commercial signs be in French only, Québec used section 33 to keep French-only signs outdoors. When the five years ran out, it changed the law instead of renewing the override.

Why it exists. In 1981 several premiers, including Alberta's, would not accept the Charter unless legislatures kept the last word in some areas. Supporters see it as a check on judges, who are not elected. Critics say a right that a majority can switch off is weaker than it looks.

Vriend v. Alberta, 1998. In 1991 Delwin Vriend was fired from his job at a private Christian college in Edmonton because he was gay. The Alberta Human Rights Commission would not take his complaint, because Alberta's human rights law did not list sexual orientation. The Charter did not apply to the private college — but it did apply to Alberta's law. The Supreme Court ruled that leaving sexual orientation out violated section 15, and read it in. Alberta considered using the notwithstanding clause to reverse the ruling, and decided not to.

How laws are made. Governments now check bills against the Charter before introducing them, and since the end of 2018 the law has required the federal Minister of Justice to table a Charter statement with every government bill. Some see unelected judges gaining too much power over lawmaking; others see rights being weighed before a law passes rather than after.

Workplaces. Section 15 applies directly to governments as employers, and it also allows programs, such as employment equity, that help disadvantaged groups.

Source. Two invented speakers. Speaker I: “Judges are appointed, not elected. When a court strikes down a law the people's representatives passed, the people should have a way to answer back.” Speaker II: “A right that a majority can switch off when it is unpopular is not much of a right.”

Reading it. Speaker I trusts elected legislatures, and the Charter feature that fits is the notwithstanding clause. Speaker II worries about minorities and would want it used rarely, if ever.

The trap. Asked which feature Speaker I would most likely defend, many students choose section 1, because it also limits rights. But judges apply section 1. It does not give legislatures the last word, which is Speaker I's whole point. Only section 33 does that.

• Applying the Charter to private businesses directly. It binds governments; human rights laws cover private conduct.
• Confusing section 1 with section 33. Courts apply section 1; legislatures use section 33.
• Saying section 33 overrides any right, forever. Only section 2 and sections 7 to 15, five years at a time.
• Mixing up the 1960 Bill of Rights and the 1982 Charter. Only the Charter is entrenched.