Canadian Enforcement Of Rights

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Complaints based approach

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Under S24 of the Charter, anyone whose rights or freedoms, as guaranteed by the Charter, have been infringed or denied may apply to a court for a remedy. The Charter can be interpreted by the courts(with the Supreme Court of Canada being the ultimate authority) to determine whether there has been an infringement of rights and freedoms. In doing so the courts must have regard to the recognition of the rights of aboriginal peoples of Canada (including Indian, Inuit and Metis groups), equal treatment for males and females, and protection of multicultural character.

Legislation that infringes the Charter can be declared invalid by the courts under S52 of the Canadian Constitution, and will cease to have any effect. This is similar to a declaration of invalidity in Australia. In Australia, if the High Court declares a law invalid, the Commonwealth Parliament cannot override this provision.

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Overriding provision

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Unlike Australia, the Canadian Charter (S33) permits parliament (federal, provincial and territorial)to pass legislation with a clearly expressed intent that the legislation is to override a specific right protected in the Charter. This overriding provision lasts five years (sunset clause) (general elections must be held at least every five years), after which time the legislation must be passed again. Thus,S33, known as the override or notwithstanding clause, allows parliaments to make some of their laws temporarily immune from judicial review under the Charter.

There are some exceptions to this right of parliament to override rights protected in the Charter.These are that parliament cannot override voting rights (democratic rights), the right to travel into and out of, and within, Canada (mobility rights) or language rights. In Canada, by prohibiting parliament from overriding democratic, mobility and language rights, the Charter achieves a compromise between parliamentary sovereignty and judicial supremacy when it comes to the protection of rights.

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Remedies where rights are infringed

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When legislation has been declared invalid, the Supreme Court can temporarily suspend an order to strike down legislation to give parliament time to respond to the court’s decision by amending the legislation to bring it into line with the Charter. In addition to declaring legislation invalid, the court can make another appropriate remedy, such as an award of damages, where rights have been infringed.

The court can:

• read down the impact of legislation (that is, interpret the legislation narrowly) to bring its operation within the boundaries set by the Charter

• make an appropriate remedy, such as an award of damages under S24(1)

• exclude evidence in a criminal or civil case that has been obtained in violation of Charter S24(2).

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Pre-legislative scrutiny

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Before Bills are passed by parliament in Canada, the minister for justice must certify that they do not infringe the Canadian Charter of Rights and Freedoms. In addition, each house of parliament has a standing committee that scrutinises Bills. The committees can hold public meetings and invite public comment on the possible impact of the Bill. This scrutiny by committee is similar to the process in Australia.

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Limitation of rights

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In Canada, parliament can limit the rights protected by the Charter where the limit ‘can be demonstrably justified in a free and democratic society’ (S1). This section is known as the limitation clause or the reasonable limits clause.

For example, in the case of R v. Sharpe (2001), the Supreme Court had to decide whether legislation banning possession of child pornography infringed the right to free expression. The court found there was evidence establishing a link between harm to children and possessing child pornography, and accordingly the limitation on free speech was justified.Section 1 has also been used to uphold laws against hate speech and obscenity.

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Advisory opinions

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In Canada, dialogue or discussion is encouraged between the parliament and the courts so that the parliament can seek advisory opinions from the Canadian Supreme Court – the highest court in Canada. The parliament or governor in council may put forward a reference or questions to the Supreme Court, seeking advice on matters of the constitutionality or interpretation of legislation.Therefore, when passing legislation, the parliament can determine from the court whether the legislation is likely to infringe any of the rights protected in the Charter. If it is, the parliament can engage in a discussion with the judges about likely impacts, interpretation and so on.The Australian High Court is not permitted to give advisory opinions regarding legislation, and will only consider a legal issue when a case comes before it on the matter in question.

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Changing the Charter

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The procedure for amending the Canadian Charter of Rights and Freedoms is similar to the process for amending the Constitution in Australia. The proposal must be passed by parliament, and then passed at a referendum that achieves a ‘yes’ vote from 50 per cent of the population and a majority in two thirds of the provinces.