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Constitutional Law: Our Inalienable Rights: Part 3

Updated: May 18, 2023

Constitutional law generally refers to the foundations of all our other laws. The Constitution is a section under public law and is probably the first set of rules that govern a newly established country on top of everything else. It establishes the very fundamentals which other laws are built upon (Mentioned in section 1, The Foundations of Government), it establishes the freedoms and rights of the citizens, and, of course, it is probably the most important document in our government system. Much like our neighbor in the South, the way we change the constitution is through the amending process by Parliament. Just like the Bill of Rights, The Charter of Rights and Freedoms is our form of listing the rights and freedoms of our citizens. In this section, I will be exploring mainly on our Charter of Rights and Freedoms, how we enforce these rights, and some controversial topics in our Constitution that might hinder justice.

The Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms is what all of our laws must follow. The Charter lists, as the title suggests, our rights and freedoms. Since it is a federal law, it has jurisdiction all over Canada including local government because they are essentially federally funded. The Charter protects the basic rights that are essential to keeping Canada a free and democratic society. Introduced in 1982, the Charter plays a prominent role in the Canadian governing system since it guarantees everyone the rights listed and protects the citizens from government institutions.

Figure 3.1: Charter of Rights and Freedoms

Within the Charter, there are 33 sections, ranging from the Fundamental Freedoms to the Applications of Charter. It guarantees the freedom of expression, not getting discriminated against, and many more. On paper, the Chater looks like it is the only document that there needs to be in order to solve all of our problems, but in reality, this is not the case.

A huge limitation on the Charter is that it only applies to government institutions, meaning that if you are employed by a private company, the Charter won’t be able to protect you. Common government institutions in Canada include: public buses, Canada Post, the police, and government workers. Even if you are not employed by the government, and you feel like you are treated unfairly, you could still take actions, but it won’t be using the Charter (more on this in Civil Law). However, even though the Charter looks like a good way to solve segregation and racial inequalities (major issues in our current world), this was not always the case.

A Little History on Segregation in North America

Since the beginning of civilization, segregation has been a part of our lives no matter if it is racial or gender. This can be most prominently seen directly from the Declaration of Independence itself with the opening “All men are created equal,” and that means all white men. If you really think about it, it is kind of ironic how the founding fathers fought for freedom from the British in order to establish them as the dominating power and put the blacks and women in the minority just like the British did to the colonists. Due to this, many black individuals, especially during the early 1900s after the emancipation during the civil war and the reconstruction amendments (13th, 14th, and 15th, restricting slavery, equal protection in law, and allowing men of all races to vote), are legally “free” from their slave owners and have legal rights. It would seem like this is a big victory for the slaves and blacks, but this victory was short lived. Because now there are legislations that specifically restrict slavery and equal protection under the law, this does not exclude discrimination. States can have legislation creating “white only” services such as restaurants and water fountains because technically, they are not denying blacks of their rights, but instead, they are only separating them. Due to this, it has led many African Americans to exhibit the action of “Passing.”

Racial passing is when a minority individual tries to “pass” under another racial group. It was mainly used in the United States to describe a person of color who has light colored skin that “passes” as a white especially in the Jim Crow era. The concept, “Double consciousness,” was first explored by Du Bois where an individual feels like their identity is divided into multiple parts, making it difficult to stand with one identity. Due to these actions, this has harmed people of color beyond a doubt. For instance, during the Roaring 20s in the south where Jim Crow laws were the most prominent, there was something called the “One Drop Rule.” This rule established that even if you have a single drop of black blood, you are not white and can’t access white facilities (Water fountains, restaurants, toilets). Due to these restrictions many were attracted to the action of “passing” as a “white,” which led individuals to disregard their heritage and racial identity. For instance, if you are trying to get into a fancy restaurant, you have no choice but to “pass” as a white.

Since the U.S. Supreme Court ruled that “separate but equal” was constitutional (Plessy v. Furguson), racial segregation became officially legal and actions were taken all over the country. For instance: white only water fountains, white only washrooms, white only movie theaters, etc. This has damaged many African Americans since some of them are forced to disregard their culture and identity to “Pass” as a white. Even though recent legislation such as Brown v. Board overturned “separate but equal” for “equal protection for all,” this doesn’t stop individuals from exhibiting racism. Even though De Jure segregation is not allowed, De Facto segregation is still prominent in many American cities. The act of racial segregation is wrong and should be made aware to the public.

Even though some of us associate Canada as always just and free, and say that this only applies to America since all of my examples were American based, Canada was not better, and in fact, we were basically in the same situation. Instead of targeting Amerindians (which we also did), the government’s major focus was on the First Nations by putting them into residential schools (The Indian Act). In some ways, one might argue that residential schools are even worse than simply discrimination, and to some degree, that is absolutely true. Children were separated from their families as young as 5 years old and were sent to what is essentially glorified death camps. The residential school system was designed to brainwash indigenous children by putting christianity in their bloodstreams, and this worked out terribly. Tens of thousands children didn’t make it out of residential schools, and it truly is our darkest history that many often overlooked. In addition to residential schools, segregation was also practiced in Canada with the Canadian Ku Klux Klan. Asian communities were especially targeted in the early 1900s as Chinese “coolies” were brought into Canada to work in British Columbia on the mines and the Canadian Pacific Railway. In addition, head taxes were imposed on the minorities to try and slow down the immigration rate of Asians.

The first major step to decreasing racial segregation is by education. Racism is fueled by denial. We deny that we are acting racist when in fact, we are. By implementing African American/Indigenous history into history and socials classes, we can learn about how the law and foundations of our country are built on systemic racism. By recognizing that our unconscious thoughts may be racist will help a lot in decreasing racism in our community. Another way we can stop racism is by creating anti-racism laws that hold people legally responsible for discriminating against others. Currently, this is a major issue happening in less fortunate countries that don’t have a democratic form of government. By making it illegal to discriminate against individuals around the world trying to access public services and individual rights, it would be a big step forward in our society. Lastly, we can make a call to action by promoting the matter with our friends to stress the importance of the issue. In addition, we need to change our fundamental understanding of human beings and races, and although it will be hard to accomplish since our history is built on discrimination, it is the only way for us to move forward.

The Oakes Test

The government’s main function is to protect the rights of its citizens, but in order to do so, we have to determine what constitutes as reasonable and to what extent someone can exercise their rights so that it doesn’t infringe the rights of others. The Oakes test was designed to do just that. Developed in R. v. Oakes, the Oakes test was created to determine reasonable limits and if a limit on a Charter right is reasonable. The Supreme Court applies this test to whatever case that involves a violation of the Charter rights to determine if the violation was constitutional. There are 4 questions to this test, and it must be done by this order:

Objective: limiting the Charter right serves a pressing and substantial objective that aligns with the values of a free and democratic society;

Rational connection: the law or action that limits a Charter right is carefully designed to meet its objective. A law or action that does not effectively achieve the desired objective is not rationally connected to its purpose; (“does it work? Is it logical?”)

Minimal Impairment: the law or action should achieve its objective while impairing rights or freedoms as little as possible. If there is an alternative method of achieving the objective that causes less harm to rights or freedoms, that alternative may be a better option;

Proportionality: the benefits gained by meeting the objective should outweigh the harms caused by limiting the right or freedom. The more serious the infringement on rights and freedoms, the more we should expect that a real, pressing, and substantial benefit to society is to be gained

If the law or action does not pass a part of the test, you do not need to continue and the law is outside the reasonable limits of the Chater. However, if the act passes all 4 parts of the Oakes test, there is not an infringement of the charter rights that is beyond the reasonable limit. For instance, take the case of R. v. Big M Drug Mart. Due to the Lord’s day act, people were not allowed to shop on Sunday’s since it was the“lord's day.” This act concerns the freedom of expression, Fundamental Freedoms, in the Charter of Rights and Freedoms. On April 24th 1985, the Supreme Court of Canada repealed the Lord’s Day Act in order to have policies that were better aligned with the Canadian Charter. When putting this case through the Oakes test we can notice that it failed on the very first reason/objective. This is because they were enforcing the Christian calendars even though it explicitly states in the Chapter that everyone has the right to practice their own religion.

Another prominent case regarding the charter is the case against Gurbaj Singh Multani and his kirpan. For religious background, a kirpan is one of five articles of faith for orthodox Sikhs, so it must be worn at all times from the time of baptism. It is a weapon of defense only; misusing it could result in losing one’s status as an initiated Sikh. According to the World Sikh Organization, “Not wearing the kirpan at any time, day or night, constitutes a grievous transgression.” In November 2001, Gurbaj Singh Multani was a 13 year-old student at a Montreal public school, École Sainte‑ Catherine‑Labouré. One day, his kirpan accidentally fell out from under his clothing, raising questions among the school community about school safety and whether or not he should be permitted to bring his kirpan to school. To us, we might look at a kirpan and mistake it for a dagger or knife that could potentially harm others, so the obvious answer to whether he should be allowed to carry his kirpan to school is no. However, if he does not carry it on him at all times, he risks being banished from his religion. The governing board ended saying that Multani could wear a symbolic kirpan made of a harmless material, or a small model of one on a pendant. This is a major case regarding the reasonable limits clause and if the sanctions proposed by the school board violate an individual’s freedom of religion.

S. 2 of the Charter states “Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association

This case has merit because it involves the government since Multani is attending a public school instead of a private school; therefore, the school is bound by the Charter of Rights and Freedoms. Second, it involves the limitation of a Charter-protected right or freedom. According to the SCC, “The Council of Commissioners’ decision prohibiting Multani from wearing his kirpan to school infringes his freedom of religion.”

As always, the Supreme Court used the Oakes test to determine if this sanction is within the reasonable limits of the Charter. The sanctions proposed by the Council of Commissioners passed the first part, objective, since it has a valid objective of protecting the safety of the public. It also passed the second part, rational connection, since banning a dangerous weapon connects directly to safety. However, it does not pass the third part, minimal impairment, since Multani genuinely believes that he would not be complying with the requirements of his religion if he were to wear a plastic or wooden kirpan. An easier solution would be to simply ask him to make sure it is behind his clothes at all times and secure it properly to his body. Since this sanction did not pass the third part of the test, we can stop here and do not need to continue on.

Not Withstanding Clause

Moving on to the last topic for Constitutional Law is the Not Withstanding Clause, one of most controversial laws we have in our constitution. This law basically states that provinces can choose to “opt out” of certain sections of the Charter of Rights and Freedoms for five year terms that can be renewed indefinitely. In other words, federal and provincial governments can pass laws that go against sections 2 and 7-15 in the Charter.

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under section (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under section (1).

(5) Section (3) applies in respect of a re-enactment made under section (4).

Section 2 of the charter is regarding Fundamental Freedoms (Freedom of expression, etc.), section 7 - 14 regards Legal rights, and section 15 of the charter regards Equality rights. As we consider these sections from the constitution, we will begin to notice how these rights that the Notwithstanding clause invalidates are probably the most important rights that we have. For instance, one could argue that the freedom to talk and practice their religion is among one of the most basic rights that everyone should have. The Notwithstanding clause is controversial in the aspect that it does not seem like anything Canadians would incorporate in our constitution. It goes against our fundamental values of self determination and democracy by saying that our “inalienable rights” can be violated. With that said, this piece of legislation has never been used by the federal government for obvious reasons, but it has, however, been used by Quebec. Currently, bill 101 (1977) is one of the major controversial bills in Quebec. Basically, it stated that French is the primary language in Quebec, and everything must be in French rather than English. Furthermore, it forced immigrants into the French school system and that English-speaking Canadians must also study French in school. Another controversial bill passed more recently is the C-21 bill regarding religion. The point of the bill is to make Quebec more secular. It prohibits public-service employees (eg.teachers, principals, judges, Crown prosecutors, court clerks, police officers, bus drivers) from wearing religious symbols at work, thus limiting their freedom to practice their own religion.

Overall, under the reasonable limits clause, it is constitutional to limit some rights, but under the Notwithstanding clause, it is unconstitutional to limit one's rights completely. For instance, it would make sense to limit someone's freedom of expression if they are directly imposing a threat on someone or hate speech on a particular group of people, but it won't be reasonable to ban people from showing their religion in public, as seen in Quebec, when they are not causing any harm to the public. The reasonable limits clause helps justice from being served since it effectively balances the rights of an individual while protecting the public. However, section 33 is unthinkable because technically, the government can choose to disregard people's freedom of expression and equality. Compared to the States, our Charter can be compared to their Bill of Rights. In the States, no law can violate the bill of rights and there are no exceptions. The whole point of a Charter is to make sure that everyone follows it like a universal code, so it won't make sense if there was a bill that says that we can limit and disregard certain parts of the Charter.

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