In January 2022, a large group of protesters, dubbing themselves “the freedom convoy,” occupied downtown Ottawa and several land crossings between Canada and the United States, disrupting the lives of thousands of Canadians in the process.
We put ‘u’ in neighbour and you in Canada’s conversation. Enjoy a roundup of Canada’s best writing. Sign up for The Walrus newsletter and get trusted Canadian journalism straight in your inbox.
With painted slogans like “Not all heroes wear capes” and “Liberté,” leaders initially sought to protest COVID-19 vaccine mandates for those truckers crossing back and forth into the US. In a statement released on Facebook, they claimed, “Instead of protecting our basic freedoms outlined in the Charter of Rights and Freedoms, a document that was ironically signed into law by Pierre Elliott Trudeau, Justin and his government seeks to do the opposite.” Some protesters read publicly from the Charter; others drove around Ottawa’s downtown core with large boards on which the Charter was printed, affixed upright in the beds of their trucks. Self-styled as fighters “for everyone’s freedoms,” the ranks of protesters were soon expanded by those who opposed all COVID-19 restrictions and vaccinations, in addition to conspiracy theorists and far-right extremists.
When the government of Prime Minister Justin Trudeau invoked the Emergencies Act in February 2022 to disperse the blockades, many once again complained that their Charter rights had been transgressed. Then there were people, like the husband of one of the convoy leaders, who confused the Canadian Charter with the US Bill of Rights when he erroneously told the judge at his wife’s bail hearing that her “First Amendment rights”—which, among other things, protected her right to freedom of speech, right to assembly, and right to petition the government—had been violated. Perhaps they were, if this had been a court in the US! To this, we could add the Alberta premier’s promise to “pardon” Albertans who violated COVID-19 regulations.
Clearly something is amiss. If we do not understand what the Charter is, and if we fail to grasp what is in it and what isn’t, we have a real problem on our hands. When citizens do not understand the supreme law of their land, confusing their rights with those of another country, surely the civic health of the nation is at risk.
There are certainly similarities between the Charter and the US Bill of Rights. Both documents guarantee a set of liberal democratic rights that include freedom of expression, religion, association, and assembly; procedural protections for those arrested and charged with crimes; a prohibition on cruel and unusual punishments; and equal protection of the laws. Neither expressly includes guarantees of social and/or economic rights, such as the right to food, housing, health care, education, or income support, or the protection of the environment. Like the US, Canada is a federation, and like the US Bill of Rights, the Canadian Charter is binding on all spheres of government but not on private individuals, firms, or institutions.
There are, however, many crucial differences between the two bills of rights. Such differences have enabled the Charter to establish its own course and to offer a fresh and modern alternative to the constitutional model supplied by the US. The universalist elements of the US Bill of Rights, for instance, have become increasingly particularized over time as they have become enmeshed with and complicated by two centuries of specifically American interpretation of these rights.
The Canadian Charter, by contrast, is a contemporary document, relevant to the complexities of modern life, allowing for provisions relevant to twentieth-century rights protection. In this context, the Charter reflects a struggle with the challenges of a modern multicultural and multilingual society, in addition to recognizing the existence and legitimacy of minorities and Indigenous groups. It is precisely these virtues that prove popular to new and burgeoning democracies, many of which face similar problems or issues in their countries.
The US constitutional model, to give another example, contains no equivalent to Section 1 of the Charter. This means that it is not as restrictive when it comes to limiting things like hate speech. This lack of explicit limitations on rights has led the US Supreme Court to create what are called implied limits, each of which is subject to its own specific limitations and standards of scrutiny. This means that different limitation tests apply, for example, to restrictions on freedom of religion than to restrictions on liberty. Moreover, different justices of the US Supreme Court may apply different rights-specific tests or standards of scrutiny.
Section 15 of the Charter is also much more expansive or open-ended than the US Bill of Rights when it comes to equality, constantly expanding the notion to more and more groups (e.g., 2SLGBTQI+ people). We see this, for example, in Egan v. Canada (1995), when all nine judges agreed that sexual orientation was a protected ground and that benefits should be extended to partnerships of lesbians and gay men, paving the way for same-sex unions and the redefinition of marriage.
Unlike in the US, “affirmative action” is enshrined in the Charter’s Section 15(2), which “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Once again, this is no doubt related to the contemporary nature of the Charter, whereas in the US, courts have had to resolve many constitutional issues through extensive litigation, which is exacerbated by the often highly political nature of that country’s judiciary.
Also unique to the Charter is the guarantee of language rights. Section 16, for example, grants unequivocal equal status to both French and English as official languages of the country. Section 20 guarantees citizens the right to receive federal public services in either language. And Section 23 guarantees the right to be educated in either language through the secondary school level.
It is sections such as these, including the rights protections associated with them, that distinguish the Charter from the US Bill of Rights and, by extension, the Canadian Constitution from the US version.
Writing on the front page of the New York Times, American journalist Adam Liptak lamented the fact that the US Constitution no longer functioned as a model for other democracies. The reason, he said, was “the availability of newer, sexier and more powerful operating systems in the constitutional marketplace.” According to Liptak, the US Constitution “is terse and old, and it guarantees relatively few rights . . . failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.”
He said the US Constitution had been overshadowed on the global stage by the Canadian Charter of Rights and Freedoms. That document, he continued, “is both more expansive and less absolute. It guarantees equal rights for women and disabled people, allows affirmative action and requires that those arrested be informed of their rights. On the other hand, it balances those rights against ‘such reasonable limits’ as ‘can be demonstrably justified in a free and democratic society.’”
