Canadian Bill Of Rights: Why Bother With The Charter?

The Canadian Charter of Rights is regularly mocked and ridiculed because of its built-in defects. For examples, there’s Section 1, which allows for the “reasonable limitations” on those rights. However, it’s a bit baffling why the Bill of Rights wouldn’t be the default laws to rely on in major court cases, when it comes to Constitutional matters.

It makes little sense to launch any challenge when not using the strongest laws available. Is the goal to lose on purpose?

Section 1, in principle, seems fine, as it’s governed by the Oakes Test:

The Government must established something is “pressing and substantial.” While this is often not difficult, there’s a 3 part test that follows.

  • The remedy sought must be RATIONALLY connected to the purpose
  • The remedy sought must create a LIMITED IMPAIRMENT to society
  • The remedy sought must be PROPORTIONATE, and not overreaching

Sounds fine in principle. However, the last few years have shown that Judges are all too willing to bend the rules for some abstract sense of the “greater good”. The Bill of Rights doesn’t have this.

In fairness, it’s rather naive to trust laws and politicians. However, switching to the Bill would remove an obvious weakness.

The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;
Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;
And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:
Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Bill of Rights
Marginal note: Recognition and declaration of rights and freedoms
1 It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(f) freedom of the press.

2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to:
(a) authorize or effect the arbitrary detention, imprisonment or exile of any person;
(b) impose or authorize the imposition of cruel and unusual treatment or punishment;
(c) deprive a person who has been arrested or detained
(i) of the right to be informed promptly of the reason for his arrest or detention,
(ii) of the right to retain and instruct counsel without delay, or
(iii) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful;
(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or
(g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.

The above sections are similar to the Charter in regards to: fundamental freedoms (Section 2); security of the person (Section 7); unreasonable search and seizure (Section 8); arbitrary detention (Sections 9 & 10); rights in criminal proceedings (Section 11); and cruel and unusual punishment (Section 12). Again, there’s no loophole which allows a court to simply suspend those rights.

There’s also no Section 33, the Notwithstanding Clause, to allow Parliament to simply legislate blatantly unconstitutional things into law. However, the start of Part 2 may be seen as one.

There is also this at the end: “(3) The provisions of Part I shall be construed as extending only to matters coming within the legislative authority of the Parliament of Canada.” Therefore, it may not apply to Provincial matters.

An interesting video from last year, from a lawyer with a different opinion.

Just something to think about.


16 Replies to “Canadian Bill Of Rights: Why Bother With The Charter?”

  1. Very relevant topic! What about the application of the federal BoR to provincial orders? From a jurisdiction angle….

    1. The Bill of Rights does not apply to provincial statutes, regulations or orders. See the two videos I posted already which deal with this.

    1. Rebecca,
      can you share a link to the Court’s Decision, so that we can see if the citing of the Bill of Rights was actually the reason for the dismissal of charges? I think seeing the actual reason(s) for the decision to dismiss the case is important, since not a single individual I know of that was charged has been found guilty, and no one else cited the Bill of Rights to accomplish that outcome.

      We have to make sure at all times that we link the right cause to the effect obtained, especially when the Bill itself states it’s limitations and there is endless case law holding that the Bill of Rights has no effect on provincial actions.

      Thank you

  2. The Charter is not only a defective word salad, it was never assented to. S. 59 was never satisfied. Further, it is a business document appended to a commercial corporation’s Constitution and that Constitution, if it was valid after 1931, applies only to coastal and inland waters.

    The Bill of Rights applies only to federal legislation, which is funny because the federal corporation went bankrupt long ago and all of it’s ‘legislation’ therefore became void.

    As long as a corporation masquerading as government keeps us reading fiction, we shall continue to be enslaved from all angles. It’s not that the individual is not smart enough to read, it’s that we let lawyers read for us, and their task is to make us believe that fiction is law and that this fictitious law aligns with GOD’s laws.

  3. Rebecca, you have no credibility with me whatsoever. Many people’s charges were dropped because crowns realized that they couldn’t make them stick, for a wide variety of reasons. You can continue believing in unicorns if you wish, but you really should stop trying to persuade the world that they’re real.

    1. Thanks so much Karen for calling her out. Rebecca and another name, Reb Sheppard repeat her story line all over the internet to mislead people. It is so not fair to those already victimized. I commented on their site about this misrepresentation, but it did no good. They have their following (cult) that just keeps repeating it.

  4. Karen, explain to your audience how sec 25 of the criminal code brings those enforcing orders under federal jurisdiction, therefore BoR applies to provincial tickets etc.
    Maybe you’d also be wise to have them read roncarelli v duplessis to gain a deeper understanding of how any public servant can be held personally liable if found to overstep their authority?
    Have you filled them in on how the bar assoc is threatening you lieyers if you use the BoR? Much like the doctors and the college of physicians

    1. I like this one: Criminal Code of Canada
      Obedience to de facto law
      15 No person shall be convicted of an offence in respect
      of an act or omission in obedience to the laws for the
      time being made and enforced by persons in de facto
      possession of the sovereign power in and over the place
      where the act or omission occurs.

      Nothing can be more de facto than what is found in Canada.

    2. Kevin, if you would bother to watch the SECOND VIDEO I already posted in this thread, you will see how I have dealt with this issue of CC s. 25 and explained it to the full satisfaction of anyone with a modicum of rational thinking ability. Roncarelli v. Duplessis has nothing to do with this thread, so you shouldn’t have embarrassed yourself by tossing it in here as if it were related. Here’s the link. Go read it. Finally, the Law Society of Ontario has sent absolutely nothing to me trying to restrict me from speaking out in any manner I wish. My status is “retired”, however. If they are doing anything to prevent lawyers still in active practice from speaking out, I haven’t heard about it. Since you seem to know so much about this, why don’t you provide details? By the way, are you that idiot who keeps blathering on and misleading people about the common law?

  5. Kevin, can you give me a link or info as to where to find more on this please ‘…how the bar assoc is threatening you lieyers if you use the BoR’. I sure could use it for a project I’m working on. Send it to graceplacewellness at gmail dot com if you prefer.

  6. I am not a lawyer/paralegal/lucensee, but have acted as advisor and coordinator of evidence on various substantial legal challenges under the auspices of lawyers, including the Adamson Barbecue/Skelly ROA application.

    I’ve opined on this matter many times. No provincial court case involving provincial law has ever been won arguing the Canadian Bill of Rights. Not once. Ever. Only withdrawn. And not even for that stated reason.

    The Constitution Act, 1867 at sections 91 and 92 delegate powers to the federal and provincial governments, respectively. Prior to the end of March, 1979 in Ontario, almost everything was under the federal criminal law power and minor offences were handled under the Summary Convictions Act.

    Then the Provincial Offences Act became law and was based on a Supreme Court decision from the previous year, Sault Ste. Marie which established and distinguished quasi-criminal, regulatory offences from true crime under the Criminal Code and other strictly criminal offences.

    Provincial offences were then put under the POA, rendering the federal Bill of Rights inapplicable to strictly provincial matters. Karen Selick has done two videos on this already. I’ve known her since she was Litigation Director of the CCF. Her analysis is 100% bang-on and irrefutable. She should not have to do a third video.

    By all means, READ section 5 of the Bill of Rights, sections 91(27) and 92(13)-(16) of the Constitution Act, 1867, R. v. Sault Ste. Marie from 1978 and lookup “Canadian Bill of Rights” on CanLii to find other critical, determinative case law like the US Steel case from 2010 and 2011, The Queen v. Drybones, and MacBain v. Lederman.

    When I sued Toronto all the way to the Court of Appeal, I spent 25 hours pulling every, single court decision ever rendered on the CBOR. I would later withdraw my pleadings regarding it. The Supreme Court froze its interpretation in 2003 to how it was framed back in 1960. That really kneecapped its power. Besides that, a lot of judges hate it and think it’s duplicative and weaker than the Charter. It’s not supreme law like the Charter and can be ducked on that basis, as well.

    Feel free to use it in front of a Justice of the Peace, who is not legally trained, in provincial courts adjudicating provincial law. Or in other legal forums like some petty tribunals and perhaps Small Claims, although they’re more of a crap shoot. Federal stuff is always fair game, of course. Try it in Superior Court for provincial matters and they’ll take your head off, hit you with costs and ban you from returning. You’ve been warned.

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