General principles for the interpretation and application of the Charter

General principles of constitutional interpretation

The Canadian Charter of Rights and Freedoms forms a part of the Canadian Constitution and should be interpreted in a similar fashion.

Specific aspects of Charter interpretations

The Purposive Approach

Purposive analysis, the cornerstone of Charter interpretation, requires that Charter rights be given a generous and liberal interpretation aimed at fulfilling the purpose of the right in question and of the Charter as a whole. The central precept of the purposive approach is that the meaning of the right must be understood in light of the interests it was meant to protect. This requires consideration of the relevant linguistic, philosophic and historical contexts. Regard must be had for the language used, other Charter rights with which the right is associated, and the need for Charter rights to be capable of development over time (Hunter et al. v. Southam Inc., [1984] 2 SCR 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Irwin Toy Ltd. v. A.G. Quebec, [1989] 1 S.C.R. 927; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. K.R.J., [2016] 1 SCR 906, 2016 SCC 31, at paragraphs 37-38). Charter rights should be read broadly, putting the burden of justifying limitations on the state (Beena B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876). It is important not to “overshoot” the purpose of the right in question (Big M Drug Mart, supra; R. v. Suberu, [2009] 2 S.C.R. 460, at paragraph 24; R. v. Grant, [2009] 2 SCR 353, at paragraphs 16-17).

Contextual Analysis

Contextual analysis, another interpretive doctrine regularly invoked in conjunction with the purposive approach, requires that the Charter question be situated within the actual social, political and legal context in which it arises (e.g.: regulatory vs. criminal matters; citizens vs. non-citizens) (Edmonton Journal v. A.G. Alberta et al., [1989] 2 S.C.R. 1326; Thomson Newspapers Ltd. v. Canada, [1990] 1 S.C.R. 425; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Chiarelli v. Canada (M.E.I.), [1992] 1 S.C.R. 711; R. v. Fitzpatrick, [1995] 4 S.C.R. 154; May v. Ferndale Institution, [2005] 3 S.C.R. 809). Contextual analysis will often involve a consideration of the principles and policies underlying the law or area of law in question (e.g., extradition: Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; immigration: Chiarelli, supra; customs: R. v. Simmons, [1988] 2 S.C.R. 495, R. v. Jacques, [1996] 3 S.C.R. 312; highway safety: R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3). When legal rights are at stake, the contextual approach suggests that the Charter will be interpreted more flexibly where the relevant state action does not threaten the individual with the risk of imprisonment (Wholesale Travel, supra; R. v. Pontes, [1995] 3 S.C.R. 44; Michaud v. Quebec (Attorney General), [1996] 3 S.C.R. 3; R. v. Richard, [1996] 3 S.C.R. 525; R. v. Jarvis, [2002] 3 S.C.R. 757, at paragraphs 60-65).

The contextual approach is also relevant to the determination of the appropriate balance to be struck between individual rights and societal interests (RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Wholesale Travel, supra; Chiarelli, supra; Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9, at paragraphs 22-27) whether this balancing occurs within the substantive right itself (Chiarelli, supra; Thomson Newspapers, supra; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paragraphs 19-28; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at paragraphs 4-5; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paragraphs 2, 79-80; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176) or under section 1 (Edmonton Journal, supra; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Ross, supra; Harvey, supra; Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381, 2004 SCC 66). The contextual approach may also be applied in determining the appropriate remedy to be granted (Schachter v. Canada, [1992] 2 S.C.R. 679; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; Ernst v. Alberta Energy Regulator, [2017] 1 SCR 3, 2017 SCC 1) Contextual factors, or “the matrix of legislative and social facts”, may prompt the Supreme Court to depart from its own precedents (Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; United States v. Burns, [2001] 1 SCR 283, 2001 SCC 7; R. v. Bedford, [2013] 3 S.C.R. 1101.) In some cases, social science evidence or social or legislative facts will be determinative (R. v. Bedford, [2013] 3 S.C.R. 1101).

Consequently, Charter analysis is highly fact driven. “Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues”: MacKay v. Manitoba, [1989] 2 S.C.R. 357, at page 361.

Textual Analysis

Textual analysis refers to an interpretive approach which relies strictly on a provision's wording in order to interpret the right(s) conferred. The Supreme Court has on occasion attached great importance to the text of Charter provisions: Haig v. Canada (Chief Electoral Officer), [1993] 2 R.C.S. 995 (section 3); R. v. Potvin, [1989] 1 S.C.R. 525 (paragraph 11(b)); R. v. Finta, [1994] 1 S.C.R. 701 (paragraph 11(g)).

A textual analysis has been applied on occasion to Charter provisions dealing with language rights on the basis that such rights are — unlike, for example, legal rights — founded on political compromise and may for that reason be more narrowly interpreted (Société des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549). However, in other cases, the Supreme Court has indicated that language rights may still be interpreted in a purposive, albeit prudent, manner (Mahe v. Alberta, [1990] 1 S.C.R. 342; Reference Re Public Schools Act (Manitoba), [1993] 1 S.C.R. 839).

In interpreting a Charter right, all parts of the text must be given meaning (R. v. Wigglesworth, [1987] 2 S.C.R. 541); as well, other Charter provisions may assist in determining the content of the right in question (R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Thomson Newspapers, supra; Reference re Ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123). The interpretation of all Charter rights should be consistent with principles of equality (Big M Drug Mart, supra; R. v. Beare; R. v. Higgins, [1988] 2 SCR 387); the language rights provisions, because they apply only to select groups, have their own, internal principle of equality (Mahe, supra; Reference Re Public Schools Act (Manitoba), supra).

Interpretive Provisions

The Charter contains several provisions, which are largely interpretive in nature: see sections 25 through 31.

English / French Versions

As between the English and French versions, while both are equally authoritative (R. v. Collins, [1987] 1 S.C.R. 265), the less ambiguous version should govern (Mahe, supra; Harvey, supra).

External Aids to Charter Interpretation

Charter interpretation may be informed by reference to a number of external sources. The various checklists contain a segment outlining the major relevant Canadian, comparative and international law sources for the particular substantive provision.

Canadian sources include the Canadian Bill of Rights, the Quebec Charter of Human Rights and Freedoms as well as, particularly in respect of section 15 of the Charter, the Canadian Human Rights Act and similar provincial and territorial legislation. The cases which interpret the Canadian Bill of Rights are largely unhelpful in interpreting the Charter given the significant differences in the wording and constitutional status of the two documents (Big M Drug Mart, supra; R. v. Therens, [1985] 1 S.C.R. 613); but see Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, per Wilson J. While by no means identical, there are significant similarities between the Canadian Charter and the Quebec Charter (see Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791).

Canadian courts on occasion will look at the constitutional texts of other democratic countries and the jurisprudence interpreting these comparative law sources. The jurisprudence of common law countries, such as the United Kingdom, the United States of America and India as well as the jurisprudence of countries with constitutionally entrenched human rights charters, such as New Zealand and South Africa are particularly relevant. American constitutional authorities should be used with care, bearing in mind the many differences between the Canadian and American constitutional instruments including their language, structure and the absence in the American document of provisions comparable to our section 1 and section 24 (R. v. Mills, [1999] 3 S.C.R. 668; R. v. Smith, [1991] 1 S.C.R. 714; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031). Prior to the enactment of the British Human Rights Act 1998, British authorities were viewed with caution (R. v. Oakes, [1986] 1 RCS 103), but now see Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68.

International law binding on Canada, including international instruments to which Canada is a party, can inform the interpretation of Charter rights. (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3, 2002 SCC 1, at paragraphs 46, 59-75; Kazemi Estate v. Islamic Republic of Iran, [2014] 3 SCR 176, 2014 SCC 62; Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245). Particular attention should be paid, therefore to the relevant documents of the United Nations and the Organization of American States. The Supreme Court of Canada also looks to international law principles and approaches more generally when considering the content of Charter rights. For this reason, reference may be had to documents in the European and African regional systems as well as other international documents, such as those of the Organization for Security and Co-operation in Europe. (Finta, supra; Young v. Young, [1993] 4 SCR 3; Potvin, supra; Ford v. Quebec (Attorney General), [1988] 2 SCR 712; Mills, supra; United States of America v. Cotroni, [1989] 1 SCR 1469).

Academic articles, including philosophical writings, have clearly influenced the Supreme Court (R. v. Vaillancourt, [1987] 2 S.C.R. 636; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573). Reference may also be made to the drafting and legislative history of the Charter.

General principles regarding Charter application

Role of Charter Values in Statutory Interpretation

“To determine whether a provision is consistent with the Charter, it is first necessary to ascertain whether its purpose or effect is to curtail a Charter right: R. v. Big M Drug Mart Ltd., supra at page 331” (See also: Reference re Same Sex Marriage, [2004] 3 S.C.R. 698 at paragraph 40). As a first step, the provision’s meaning must be sought through statutory interpretation. It is an underlying presumption of modern statutory interpretation that “legislation is enacted to comply with constitutional norms” (Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248 at paragraph 35; Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 at paragraph 123).

Even where there is no Charter challenge to legislation, Charter values inform statutory interpretation where genuine ambiguity arises between two or more plausible readings of the text, each of which is equally in accordance with the intentions of the statute (CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743 at paragraph 14; Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539 at paragraph 48). “[W]here two readings of a provision are equally plausible, the interpretation which accords with Charter values should be adopted: see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at page 1078; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at page 660; R. v. Lucas, [1998] 1 S.C.R. 439, at paragraph 66; and R. v. Sharpe, [2001] 1 S.C.R. 45 at paragraph 33” (Application under s. 83.28 of the Criminal Code (Re), [2004] 2 R.C.S. 248, at paragraph 35.)

However, where Parliament's intent is clear (no ambiguity), the Charter cannot be used as an interpretive tool to give the legislation a meaning which Parliament did not intend (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Symes v. Canada, [1993] 4 S.C.R. 695; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at paragraph 62; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431).

Role of the Charter in the Development of the Common Law

The obligation on courts to adopt Charter-consistent interpretations of law also extends to the common law. Courts should, where possible, develop common law rules in light of Charter values (R. v. Salituro, [1991] 3 S.C.R. 654; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Bell ExpressVu Limited Partnership v. Rex, at paragraph 61), even in the absence of an element of government action sufficient to engage the Charter directly (Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130). Courts and tribunals must also ensure that that any discretion available to them is exercised in a manner consistent with the Charter (Slaight Communications, supra; Dagenais, supra; R. v. O'Connor, [1995] 4 S.C.R. 411; Ross, supra; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraphs 55, 77; Canada (Attorney General) v. PHS Community Services Society, [2011] 3 SCR 134, at paragraph 117; Divito v. Canada (Public Safety and Emergency Preparedness), [2013] 3 S.C.R. 157, at paragraph 49)).

The courts are cautious when it comes to major changes to the common law which may require the development of subsidiary rules and procedures relevant to their implementation. Complex legal developments are best left to legislators. Courts will not shy away from incremental changes to common law rules where required to reflect societal change (R. v. Mann, [2004] 3 S.C.R. 59 at paragraph 17).

Balancing Competing Charter Rights

“No right, including freedom of religion, is absolute: see, e.g., Big M, supra; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141, at page 182; B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at paragraph 226; Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at paragraph 29. This is so because we live in a society of individuals in which we must always take the rights of others into account. In the words of John Stuart Mill: "The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it": On Liberty and Considerations on Representative Government (1946), at page 11. In the real world, oftentimes the fundamental rights of individuals will conflict or compete with one another” (Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at paragraph 61).

There is no hierarchy of rights within the Charter. “A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights” (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at page 877). See also R. v. Mills, [1999] 3 S.C.R. 668; R. v. O'Connor, supra; Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772 and Gosselin (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 238, 2005 SCC 15.

The potential for a collision of Charter rights does not necessarily imply unconstitutionality. The collision between rights must be approached on the contextual facts of actual conflicts. The first question is whether the rights alleged to conflict can be reconciled (Trinity Western University, supra, at paragraph 29; R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 30-32). Where the rights cannot be reconciled, a true conflict of rights is made out. In such cases, the Court will find a limit on the right that is the basis of the challenge and go on to balance the interests at stake under section 1 of the Charter (Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at paragraphs 73-74). Should impermissible conflicts occur, the provision at issue will fail the justification test under s.1 and the conflict will cease to exist. In both steps, the Court conducts its analysis on the basis that the Charterdoes not create a hierarchy of rights and Charter rights should be read broadly (paraphrasing Reference re Same Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698, at paragraphs 50-53).

Competing Constitutional Rights

There is no hierarchy of constitutional rights; the Charter does not have superior status within the constitution (Adler v. Ontario [1996] 3 S.C.R. 609; Gosselin, supra, at paragraphs 23-27).

One part of the constitution cannot be used to invalidate another part of the constitution. Where the application of the Charterwould negate or invalidate the very existence of another constitutional power or right, the Chartershould not be applied. “[I]t was never intended…that the Charter could be used to invalidate other provisions of the Constitution, particularly a provision such as s. 93 which represented a fundamental part of the Confederation compromise” (Reference Re Bill 30, an Act to amend the Education Act (Ontario), [1987] 1 SCR 1148 at paragraph 62). “The test is whether to accede to the Charterargument would amount to negating or removing a constitutional power. If so, the Charterdoes not apply” (New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319 at page 390).

However, the Chartermay be applied to constrain the exercise of a particular constitutional power as long as it does not negate or invalidate the power itself (Adler v. Ontario [1996] 3 S.C.R. 609). “[T]he important question is whether we are here treating the fruit of the legislative tree, or the tree itself” (New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319).

Waiver of Rights

In certain factual situations, the question of waiver of rights (or consent to what would otherwise be a violation of rights) may arise. It is unclear whether one can waive certain Charter rights such as freedom of religion (Amselem, supra, at paragraph 92) or equality. The Court has suggested, in the context of the right to an interpreter in a criminal trial, that there may be some rights that in the general public interest cannot be waived (R. v. Tran, [1994] 2 S.C.R. 951). But see R. v. Turpin, [1989] 1 SCR 1296, in which the Court considered that an individual right such as the right to the benefit of a jury trial guaranteed by paragraph 11(f) should be capable of waiver by the individual whom the right is designed to protect even if such rights may have a public interest aspect. See also Carter, supra, at paragraph 63.

Waiver has been disapproved of in respect of human rights legislation. Contracting parties (labour relations contracts) are not competent to contract themselves out of anti-discrimination provisions of human rights legislation; contracts having such effect are void, as contrary to public policy (Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202; Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), [1996] 2 S.C.R. 3; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157).

Waiver has been recognized as possible in respect of certain Charter rights: R. v. Borden, [1994] 3 S.C.R. 145 (section 8 — protection against unreasonable search and seizure); R. v. Rahey, [1987] 1 S.C.R. 588 (paragraph 11(b) — right to be tried within reasonable time); Richard, supra (paragraph 11(d) — presumption of innocence). For waiver of any Charter right to be effective, it must be voluntary and fully informed (a clear understanding of the true consequences and effects of the waiver of rights): see Borden, supra, at paragraph 34; Richard, supra, at paragraph 22.

Charter litigation

Timing / Process

Generally, Charter issues cannot be raised for the first time on appeal. If Charter issues are not raised before the trier of fact, appellate courts are deprived of necessary factual basis for Charter analysis. Charter analysis cannot be undertaken in a factual vacuum. See Bell ExpressVu v. Rex, supra; R. v. Mapara, [2005] 1 S.C.R. 358. But the Supreme Court retains the discretion to consider constitutional issues notwithstanding that they were not raised in the courts below: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3

Standing

The Charter affects the rights of individuals. In certain cases, public standing may be granted to allow others, not directly affected, to bring a Charter challenge. The leading case applying the public interest standing jurisprudence in the Charter context is Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45. For more details, please see entry on Section 52.

Jurisdiction of Administrative Tribunals

See the entry for subsection 24(1) on this issue.

Splitting Charter Arguments

In the early days of Charter litigation, consideration was sometimes given to splitting trials of major Charter questions in two in order to conserve litigation expense and judicial resources. If at the conclusion of phase one, the court found no violation of a substantive Charter rights, there would be no need to develop or submit evidence in support of a section 1 defence. This approach has largely been discredited as the appreciation of the links, in terms of evidence and analysis, between section 1 and the substantive provisions increased over time.

Advance and Special Costs

Advance or interim costs can be granted in rare and exceptional cases and if three criteria are met:

  1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial;
  2. The claim to be adjudicated is prima facie meritorious;
  3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases (British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at paragraph 40; Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38, at paragraph 38; R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78).

Special costs payable to public interest litigants are available only in exceptional circumstances; they may be ordered where the case involves matters of public interest that are truly exceptional, and where it is shown that it would not have been possible to effectively pursue the litigation in question with private funding (Association des parents de l’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139, following Carter, supra, at paragraphs 140-141).

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