Dear Sir or Madam,
This week we have broken down the components of Canada’s constitution, written and unwritten, rigid through legislation and flexible through case law. Today we’ll move from our living constitution’s composition to its function, and interestingly, its limits.
Per s. 52 of the Constitution Act, 1982, the constitution is the “supreme law of Canada”, and any law inconsistent with the constitution is of no force or effect. Essentially this creates a conversation between parliament and the courts. The government can pass laws to govern society, which courts can declare unconstitutional, that is to say, not in keeping with the Canada’s prescribed societal principles. Once a law is declared of no force and effect, the government must then repeal the law to take it off the proverbial books, a woefully flawed process, as we in Alberta recently encountered.
The BNA Act is a large component of our constitution; another significant part is the Canadian Charter of Rights and Freedoms.1 Charter rights are similar to ss. 91 and 92 of the BNA Act in that they function as a lens through which courts examine the constitutionality of Canadian laws. The Charter’s first section is a limitations provision, one of the most fascinating limits of Canada’s Constitution.
Section 1 of the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Canadians enjoy fundamental rights and freedoms, subject to the reasonable limits of our free and functioning democratic society.
Canada’s “unique brand of constitutionalism” in the Charter – with a prescribed but limited rights approach – has been influential across the globe, including “China, Uganda, South Africa, Sri Lanka, New Zealand, Israel and the United Kingdom”.2 The strongest contrast however is with the United States’ approach to limiting rights. The First Amendment of the United States Constitution, states, “Congress shall make no law … abridging the freedom of speech, or of the press.” The amendment is silent on limiting rights, leaving legislation and case law the only means of carving out narrow exceptions. This approach is “often regarded as an absolutist protection, which protects freedom of speech even ‘to the detriment of other constitutional values and the disregard of social concerns’”.3
Section 1 of the Charter allows the government to infringe on a person’s rights only in extreme cases, where there is both a pressing and substantial objective, and a proportionality test to ensure the most minimal infringement possible. For example, in R. v. Keegstra, the Supreme Court of Canada determined that a s. 319 of the Criminal Code which prohibits the wilful promotion of hatred against an identifiable group was constitutional.4 The case confirmed that the government can infringe on a citizen’s freedom of expression in some cases of hate speech.
At the outset of this blog project, we expressed our interest in questioning how our constitution shapes Canadian society in 2016. Whether the differences between Canada’s and the United States’ approach to limiting constitutional rights has an impact on our respective cultures today is a question that we will undoubtedly explore in a later post. Especially given the upcoming United States presidential elections.
And with that, you are acquainted with our Charter and the kind of society that Canada chooses to be. Stay tuned next week for an in depth look at some of the Charter rights, demonstrating just how far we’ve come in defining our values on paper since the BNA Act.
1 Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
2 Adam M. Dodek, “The Protea and the Maple Leaf: The Impact of the Charter on South African Constitutionalism” (2005) 17 NJCL 353 at 355.
3 "Limitation Clauses", International Institute for Democracy and Electoral Assisstance (November 2014) online: <http://www.idea.int/cbp/loader.cfm?csModule=security/getfile&pageid=66634>
4  3 SCR 697, 1 CR (4th) 129.