The following is an essay I wrote for school a few months ago. I decided to share this as a filler post to hold readers over until I finish my post-in-progress about a replacement for the income tax. Therefore, this essay may not be extremely cohesive or well-written and it may not even reflect my current views. Instead, it should be taken with a grain of salt and regarded as a possible opinion (not necessarily mine). Enjoy.
Section 1 of the Charter of Rights and Freedoms has no place in the Constitution. After years of negotiation and engaging in legal bureaucracy with Britain, the Canadian government finally managed to officially codify a constitution in 1982. If the point of such a document, however, is to define the boundaries of power of a nation’s government, Section 1 of the subsection titled the Charter of Rights and Freedoms effectively renders it useless by not only legitimizing the violation of rights in certain circumstances but also by giving the judicial branch power to subjectively determine the extent to which these rights should be applied. According to the Charter, these restrictions are necessary in order to maintain a “free and democratic society” (Constitution). This implies that there is a need to prioritize, in some cases, the ‘rights’ of the collective over the rights of the individual. By the end of this essay, it should be obvious why this is not the case and why Section 1 must be re-evaluated.
In order to determine whether or not a piece of legislature or legal mandate has worked, one must first understand the original purpose of it. According to the Government of Canada’s official website,
“The Constitution is a set of laws containing the basic rules about how our country operates. For example, it contains the powers of the federal government and those of the provincial governments in Canada. The Charter sets out those rights and freedoms that Canadians believe are necessary in a free and democratic society.” (Canada).
In other words, the purpose of the Constitution is to define a set of rules for the government to abide by in order to maintain a “free and democratic society” (Canada). This provides the acknowledgement that, while government is necessary to uphold order, its power must be restricted by well-established rights and freedoms to prevent tyranny.
These rights are derived from individuality; what this means is that they were created with the principle that every single person is entitled to certain protections. In the past, this theory was known as ‘natural law’ – a philosophy that believed in a set of God-given laws fundamental to humanity. Saint Thomas Aquinas, an Italian priest who lived during the Renaissance, was perhaps among the first to introduce this theory. In Question 94 of the Prima Secundae of his unfinished work, Summa Theologica, Aquinas explains that natural law has two important components: 1) natural law is only one aspect of divine providence and 2) natural law constitutes the principles of practical rationality (Aquinas). In the modern day, however, we have generally shifted to using a secular, unspoken understanding of individuality and implicit non-coercion as our basis for constitutional rights. The most notable manifestation of this in real life is the US Constitution. Thomas Jefferson and the Founding Fathers often cited classical liberal thinkers like John Locke in the drafting of the Constitution and the importance of these values is enshrined in the document until today (Costly).
In relation to the Canadian Constitution, this means that the rights that all Canadians share are a direct result of a mutual understanding of human uniqueness. This understanding means that we understand that coercive disrespect for that individuality is criminal. For example, in the Canadian Charter of Rights and Freedoms, the right to freedom of expression is recognized in Article 2 (Constitution). This is because we recognize that any coercive suppression of this right would be unfair in the context of human individuality. Therefore, the purpose of the Canadian Constitution is to define restrictions on government power by establishing rights derived from human autonomy that cannot be infringed upon by any body, regardless of how much legal power it may possess.
On their own, the rights listed in the Charter would achieve this goal almost perfectly. However, Section 1 inherently serves as an obstacle to absolute rights. The Section specifically states that “[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” (Constitution). Immediately, it is obvious that the established purpose of the Constitution is violated by the existence of this provision because it allows for infringement of Charter rights in certain cases. However restricted these cases are, the fact remains that the Constitution, which was written to create rules to restrict government power, includes a Section that allows the violation of these rules. Thus, Section 1 is opposed to the very purpose of the Charter itself.
Disregarding the fact that Section 1 is antithetical to the purpose of a constitution in the first place, proponents of it may claim that it serves an important role nonetheless: to maintain a “free and democratic society” (Constitution). However, before even considering its main objective, one must look at established guidelines for its use. One problem that can easily be identified when reading the text of the Section is that the words, “reasonable”, “justified”, and “free” suggest that there may be room for subjectivity when deciding limitations on rights. The biggest problem with highly subjective laws is that they call into question the judicial branch’s ability to enforce them equally. This sentiment was expressed in 2013 by the Australian Human Rights Commission when the country was drafting the Human Rights and Anti-Discrimination Bill. Because the law defined “unfavorable treatment” as any conduct that “offends, insults, or intimidates the other person”, many people, including the Commission, felt that the definition was left too wide open to have equal standards in legal treatment (“Threshold”). Therefore, we must ensure that Section 1 of the Charter, like any other law, is applied objectively.
The Government of Canada summarizes the process to determine whether a particular situation allows for Section 1 to be invoked in the following way:
“The Supreme Court of Canada has stated that a limit on Charter rights is acceptable if the limit deals with a pressing and substantial social problem, and
the government’s response to the problem is reasonable and demonstrably justified.” (Canada).
In other words, all Charter rights are guaranteed by the government as long as enforcement of them does not interfere with efforts to combat a “pressing” issue in society. According to this summary, it certainly is very subjective as different individuals may have differing opinions on what is meant by a “substantial social problem” and a “[reasonable] government response”. If this subjectivity is truly representative of the way the current legal system operates, this presents a problem. A strong judicial branch needs to be largely objective not only to avoid conflict about legal interpretation but also to avoid giving too much subjective power on the application of rights to judges.
To get a better picture of the process behind Section 1 and the sorts of issues that can be deemed to be “substantial social problems”, one can look at one of the first and most famous cases in which Section 1 was successfully used: R. v. Oakes. This was a case of a man, David Edwin Oakes, who was caught possessing illicit drugs. However, although he was ultimately only convicted of drug possession, he was initially charged with possession for the purpose of trafficking. The reason for this is that according to the Narcotic Control Act if one is found in possession of narcotics, the reason for this possession is assumed to be for the purpose of trafficking. This then invites the accused to prove the opposite on a balance of probabilities. This law was challenged in court for its potential violation of the right to the presumption of innocence in Section 11 of the Charter of Rights and Freedoms. The Ontario Court of Appeal agreed with this argument and subsequently accepted the appeal. In the Supreme Court, the question of Section 1 was brought up and the case was made by the Crown that the limitation on Section 11 was necessary for a “free and democratic society”. This view was rejected according to a two-step procedure that was established known as the Oakes Test. The Supreme Court stated that although the problem of narcotics was certainly a pressing social issue, the response to it (i.e. the presumption of guilt in trafficking) was disproportionate. Thus, the ruling of the Ontario Court of Appeal was upheld (R. v. Oakes).
The Oakes Test set the precedent for all future cases regarding Section 1. This test describes the specific, two-step procedure judges follow to determine whether Section 1 may be used. The Oakes Test is as follows:
“The government must establish that the law under review has a goal that is both “pressing and substantial.” The law must be both important and necessary. The court then conducts a proportionality analysis using three sub-tests.
- The government must first establish that the provision of the law which limits a Charter right is rationally connected to the law’s purpose. If it is arbitrary or serves no logical purpose, then it will not meet this standard.
- Secondly, a provision must minimally impair the violated Charter right. A provision that limits a Charter right will be constitutional only if it impairs the Charter right as little as possible or is “within a range of reasonably supportable alternatives.”
- Finally, the court examines the law’s proportionate effects. Even if the government can satisfy the above steps, the effect of the provision on Charter rights may be too high a price to pay for the advantage the provision would provide in advancing the law’s purpose.” (University).
In terms of R. v. Oakes itself, the Crown managed to pass step 1, but not step 2 because it was not established well enough that presumption of guilt was a “proportionate” response to the social health problems caused by narcotics.
However, the most important point to note here is that the court could have possibly ruled either way because both steps of the Oakes Test are entirely subjective. There are no objective guidelines established to judge whether an issue is “pressing and substantial”, nor are there any regarding what defines a “rational connection”, “minimal impairment” or “proportionate effects” (University). Therefore, the specific guidelines used to invoke Section 1 are extremely subjective, yielding too much power to the personal opinions of the judicial branch.
Finally, the purpose of Section 1 itself must be examined. As established, Section 1 is used in cases where there is a “pressing and substantial social problem” (Canada) that the government is dealing with. This means that the debate on Section 1 essentially boils down to a debate on individual rights versus the needs and ‘rights’ of the collective. After giving it some thought, it should be obvious that individual rights win in the end.
The reason for this is that there is an actual definition of what individual rights are; the same cannot be said for collective rights. The extent of individual rights – such as the freedom of expression, the right to life, and the right to peaceful assembly – is described objectively in the Charter. Even if it were to change or become corrupted past its original purpose, we have the basic principle of human individuality that allows us to derive these rights. On the other hand, there is no such document that one can reference to find a list of collective rights. In fact, the needs of the collective are represented by the government in a democracy like Canada’s. This means that what exactly substantial social issues change with the opinions of the majority and no one but the majority. Therefore, not only are collective rights and objectives incredibly fluid and not set in stone, they do not even represent the collective accurately.
The latter argument can perhaps best be summed up by looking at restrictions on freedom of expression (section 2). Perhaps the most notable precedent-setting case on Section 2 was R. v. Keegstra. This was a case of a high school teacher from Alberta, James Keegstra, who “communicated hateful sentiments against the Jewish community in his classroom” (Columbia). He was subsequently convicted under Section 319 (2) of the Criminal Code for willfully spreading hatred about a particular ethnic/religious group. Keegstra attempted to challenge this decision by pleading freedom of expression under Section 2 of the Charter of Rights and Freedoms. However, the Supreme Court ruled that, because anti-semitism was a large societal issue, the case passed the Oakes Test and Keegstra’s Section 2 rights were justifiably limited by Section 1 (R. v. Keegstra). Although the high school environment was not used as an argument in the case, even if it were a core component to it, R. v. Keegstra set off a predictable chain reaction of hate speech cases. For example, in 2008, Maclean’s Magazine was taken to two separate human rights tribunals – one on the provincial level and one on the federal level – because of an interview they conducted that was perceived to be ‘Islamophobic’ by a large Islamic community known as the Canadian Islamic Congress (“Free”).
Although it was the government in Keegstra’s case and the Canadian Islamic Congress in the case of Maclean’s that brought up the complaint of hate speech, the principle behind such collective action is always the same: if enough people disapprove of something, it cannot be allowed. This is an extremely dangerous rule to use because it opens the door for a very slippery slope, not only in terms of the freedom of expression but all Charter rights. Leaving the application of rights up to mob rule can lead to limitation on rights to no end. Although individual rights are defined thoughtfully and objectively, collective rights are characterized by a vague set of objectives defined only by either the majority or those who can shout the loudest. We must realize that, before being a part of anything bigger, each person is an individual first and foremost. This also means that individuals do not necessarily agree with the majority. This is why even the purpose behind Section 1 is misguided; we cannot possibly allow for subjectivity and volatility at the behest of the masses in what should be a document that forms the legal basis for the whole country.
Section 1 goes directly against the objective of the Constitution: to establish a set of rules for the government to protect against tyranny and maintain freedom. Furthermore, via the Oakes Test, it allows for enough subjectivity to be subject almost entirely to the personal opinions of those in the judicial branch of government. Finally, the objective behind it is flawed; addressing “pressing social problems” by limiting individual rights is questionable at best and begs for a slippery slope into mob rule at worst. The Charter of Rights and Freedoms was written with a noble cause in mind. To honor that cause and to ensure that the document has legal meaning, Section 1 must be removed.
Works Cited
Aquinas, Thomas. Summa Theologiae. Bezinger Brothers Printers to the Holy Apostolic See, 1485.
Canada, Canadian Heritage. “Your Guide to the Canadian Charter of Rights and Freedoms.” How your rights are protected, 24 October 2017, https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html.
Columbia University, Global Freedom of Expression, “Case Analysis” R. v. Keegstra, 2015, https://globalfreedomofexpression.columbia.edu/cases/r-v-keegstra/
Constitution Act, 1982, Government of Canada §§ Charter of Rights and Freedoms-1-34 et seq. (1982). Print.
Costly, Andrew. “The Declaration of Independence and Natural Rights.” Natural Rights – Constitutional Rights Foundation, 2001.
“Free to speak: human rights commissions are undermining the fundamental Charter rights of all Canadians. Protest while you still can.” Maclean’s, 28 Apr. 2008, p. 2+. General OneFile
- v. Keegstra. Lexum. Supreme Court of Canada. 13 Dec. 1990. Print.
- v. Oakes. Supreme Court of Canada. 28 Feb. 1986. Lexum. Web. 9 Mar. 2018.
University of Alberta, Centre for Constitutional Studies. “Oakes Test.” Centre for Constitutional Studies, 15 July 2014, https://ualawccsprod.srv.ualberta.ca/ccs/index.php/i-o/774-oakes-test
“Threshold set low New hate laws too subjective.” Townsville Bulletin [Queensland, Australia], 21 Jan. 2013, p. 11. Infotrac Newsstand.
Common Sense 