A government action or law can be challenged on the basis that it offends the Charter of Rights and Freedoms.
The charter guarantees, with certain qualifications, the rights to free speech, to vote, to move from province to province, to life, liberty and security of life, the right to counsel on arrest and the right to equality. However, charter rights are not absolute. First, the charter allows a court to find that while a specific provision of the charter is offended, if the offending provision can be shown to be within “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” it can be upheld.
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In some circumstances a government, either federal or provincial, can declare that the law will apply even though it offends the charter by using the override provisions of section 33. The override cannot apply to the right to vote or the right to move within Canada, and is only valid for five years. Finally, a government can again pass legislation written in a way so as not to offend the charter.
In my opinion, challenges of government actions on the basis that the charter is violated have become the most common ground for attacking government actions.
Over a decade ago, the Supreme Court struck down the abortion provisions in the Criminal Code because it violated the section providing “security of the person.” The court said that availability of abortion and the application of the law were not equally applied across the country and that the decision regarding an abortion was made by a committee rather than the woman herself. The federal government considered repassing abortion laws so as to comply with the ruling, but gave up when it couldn’t find a suitable compromise.
Similarly, some years ago in the Vriend case, the Supreme Court ruled that Alberta’s human rights legislation must be deemed to include protection from discrimination on the basis of sexual orientation. Alberta’s law did not deal with sexual orientation.
Vriend was an Alberta teacher who was dismissed from a religious college because he was gay. The court said that if sexual orientation was not included then it would offend the equality provisions in section 15 of the Charter of Rights and Freedoms, so it ruled that such protection must be included in Alberta’s legislation dealing with discrimination on the basis of sex.
A number of farmers opposed to the wheat board argued that the Canadian Wheat Board Act violated their charter rights. Specifically, they argued that their “freedom of association,” their right to “pursue … a livelihood in any province” and their equality rights were violated by wheat board legislation. The latter argument was based on the fact that farmers in Eastern Canada and parts of British Columbia are not subject to the wheat board legislation and are therefore treated differently.
So far these arguments have met with failure in the courts. The matter was heard by the Federal Court of Appeal. The court ruled that section 15 protects dignity and personal identity, not economic rights. The court also rejected the other two grounds, ruling that the board did not interfere with the right to meet nor did it take away one’s livelihood.
The Supreme Court refused to hear a further appeal.
Next week: when the government ignores its own legislation.
