 This is Wayland Chow and welcome to part three of the Constitution of Canada. In this part, we'll look at the Canadian Charter of Rights and Freedoms. You might remember from part one of this series where we looked at the history of the Canadian Constitution that a very significant year was 1982. In that year, the Constitution was repatriated from the United Kingdom to Canada. In other words, our Constitution became a Canadian law in 1982. In the process of repatriating that constitution to Canada, an additional, a very key additional part was added to the Constitution. And that was the Canadian Charter of Rights and Freedoms. The Charter is found in the Constitution Act 1982. So what is the relevance of the Charter? Or in other words, what does the Charter apply to? So we look at section 32 of the Charter, which says that the Charter applies to the Parliament and Government of Canada and also the Legislature and Government of each province. So the effect of that is that the Charter applies to any government law or action in Canada. What that section also tells us is what the Charter does not apply to. It does not apply to anything that is not government. It does not protect against human rights violations by businesses, individuals or other non-government organizations. For example, if you apply for a job and you're not given that job on the basis of your race or religion, then it's not the Charter that you would look to for protection. It would be something else. It would be a human rights code. And there are human rights codes under provincial legislation in every province. And there's also a Canada human rights code. If you remember section 52 from the Constitution Act 1867, it says that the Constitutional Canada is a supreme law of Canada and that any law that is inconsistent with the Constitution is of no force or effect. So in applying that section in the context of the Charter, it means that any government in Canada cannot do anything, cannot pass any law or do anything that violates a protected Charter right or freedom. Another way of expressing that is that a government's ability to make law under the division of powers, remember division of powers gives each level of government certain power to make law in certain areas. So in making law under those division of powers, the governments are constrained by the Charter of Rights and Freedoms. In other words, in making those laws, those laws cannot violate the Charter. Let's now look at some specific rights and freedoms that are relevant to business. Under section two, there are a number of different fundamental freedoms that are protected including the freedom of religion. Many years ago, there used to be laws in Canada which prohibited businesses from opening on Sunday. Sunday was recognized as a day of religious observance under Christian religions. That those laws, those Sunday shopping laws were challenged under in the Big M Drug Mart case that was decided by the Supreme Court of Canada. Supreme Court of Canada held that those laws contravened the freedom of religion protected by the Charter and therefore those Sunday shopping laws were held to be invalid. There's also the freedom of expression that's also in section two of the of the Charter. Well, in a few moments, we'll look at a case called Irwin Toy which dealt with the constitutionality of a Quebec provincial law which prohibited advertising that was aimed to young children. Section six is what is called freedom of mobility. It guarantees every citizen of Canada the right to enter Canada, remain here and also to leave Canada, but it also guarantees to every citizen the right to live in any province in Canada and also to work in any province in Canada. That freedom of mobility was applied in a case which challenged an Alberta law which prohibited law firms in Alberta from partnering with non-Alberta firms and that law was held to be invalid for violating freedom of mobility. Section 15 in the Charter is called the right to equality. It essentially prohibits governments from discriminating on certain bases. There was a law in British Columbia which prohibited non-Canadian citizens from practicing law in that province. In the Andrews case, that law was challenged and held to be unconstitutional and invalid due to the right to equality. It is worth pointing out that there are some rights that are not protected by the Charter. Property rights, like your legal rights to own and enjoy assets is not protected by the Charter which means governments can pass laws that take away or diminish your property rights. Economic rights, the right to carry on business activities is also not protected by the Charter and there is no right to shelter or a minimum standard of living. Supreme Court Canada has specifically said that there is no unconstrained freedom in economic activities nor is there an unconstrained right to transact business whenever one wishes. So essentially, there are no economically related rights that are protected by the Charter. When thinking about and applying the Charter, one very important overall concept to keep in mind is that these rights and freedoms that are guaranteed in the Charter are not absolute. The best example of that is one that was created by the famous US Supreme Court Justice Oliver Wendell Holmes. Oliver Wendell Holmes put forward the example of falsely yelling fire in a crowded theater. Under the US Constitution, there is the First Amendment which guarantees freedom of speech which is similar to our freedom of expression in the Charter of Rights and Freedoms. Just because you have freedom of speech, it does not mean you have an absolute or unfettered right to exercise your right to speech. You cannot in that example yell fire when there is one because when you do yell fire in a crowded room in a crowded theater, you will cause a lot of chaos and havoc and it might actually cause injuries to some people and you could be charged with a crime. So that example is pointing out that there can be limits placed on these freedoms. So in applying the Charter, there is a balancing of interests. On one side of the scale are individual interests. So those are the rights and freedoms that we find in the Charter, freedom of expression, freedom of religion, all of those, all of those rights and freedoms are given to individuals. Now those individual interests are counterbalanced by societal interests. So societal interests are usually expressed by what governments decide to do in terms of law and regulation. So the way the legal mechanism that is used here to apply societal interests in applying the Charter is found in Section 1 of the Charter which allows governments to impose reasonable limits on these Charter rights and freedoms. Another legal mechanism of expressing societal interests that's found in the Charter to a lesser extent is what's called the notwithstanding clause in Section 33. Let's now look more specifically at those limits on Charter rights and freedoms. The main legal mechanism to express those societal interests and to limit these individual interests that are guaranteed in the Charter is through Section 1. Section 1 of the Charter says that the Charter guarantees the rights and freedoms set out in its subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. So there are a lot of cases that have been decided in applying the Charter that show us how the courts determine what is considered to be a reasonable limit of a Charter right or freedom and we'll look at one of those cases in a few moments which is the the Irwin the Irwin toy case. The other legal legal mechanism that imposes limits on Charter rights and freedoms is called the the notwithstanding clause that's in Section 33 of the Charter. So this this clause you know I'll explain what it is and it may not make sense and I'll explain why it exists. Now what it is is that it allows a government, it could be any government that's passing a law in Canada, it could be provincial or federal. When they're passing that law like if they know they already know that that law will be contrary to the Charter they can specifically say you know this law is overriding the Charter or more specifically declare that the law is valid notwithstanding the Charter. Basically saying you know this is exempted from the Charter and this notwithstanding clause historically thus far has been rarely used by by governments in Canada. So if a government does invoke the notwithstanding clause that exemption from the Charter is only good for five years. So then after the five years that government would have to repass that same law with that exemption from the Charter again it would have to again go through that political process, political legal process of becoming law. One significant example of the use of notwithstanding clause is by the Quebec government. The Quebec government had passed a law requiring that business signs be only in the French language. So if you put up a sign that let's say had both French and English or any other language you know that that sign you know would be illegal and you as the business owner who put up that sign would be could be found guilty of offense and be fine. And that law was found to be invalid under the Charter as infringing upon freedom of expression. So then what the Quebec government then did is that they repass the law with the notwithstanding clause or invoking the notwithstanding clause to make it exempt from the Charter. And the reason this clause exists it seems too easy for a government to be exempted from the Charter. And I guess it could be but it's always a very politically sensitive thing for a government to use this clause. So that's probably why we don't see it used that often. But this clause is in the Charter. It was put into the Charter as a political compromise. So when Pierre Trudeau the Prime Minister at the time was trying to get the Charter and the Constitution passed he had to negotiate with the Premier's in the provinces of Canada and to get most of their agreement to the Charter. They were only willing to do so if the notwithstanding clause was in the Charter. So it was a political compromise that caused the creation of the notwithstanding clause. To apply the Charter to any particular case we need to ask and answer three questions. The first question is always does the Charter apply? We've already discussed you know when the Charter applies and when it does not apply. Under section 32 it applies only to Canadian government laws or actions that does not apply to things that businesses individuals or the non-government organizations do and that's because of the wording in section 32 of the Charter. So if the answer to that question does the Charter apply is yes we move on to the second question. Does that particular government law or action infringe a Charter right or freedom? So in answering this question you know we're looking at the specific rights and freedoms that are guaranteed within the Charter and determining which of these rights and freedoms have been infringed by the law in question. And if the answer is yes it doesn't infringe a specific Charter right or freedom we move on to the last question. Is that infringement of the Charter right acceptable as a reasonable limit under section one of the Charter? So to determine if it is a reasonable limit under section one the courts have devised certain legal tests that need to be applied to determine if something is considered to be a reasonable limit. We're not going to sort of go into you know the precise detail of what these legal tests are but I've sort of boiled it down to you know the two most important requirements. First is that the law must have a pressing and substantial objective and the second requirement is that the law only minimally impairs the Charter right or freedom. So if we have both of those things then the law is considered to be acceptable as a reasonable limit of a Charter right or freedom. Let's look at a specific case to get a better understanding of how the Charter is applied. In 1989 Supreme Court of Canada issued a decision in the Irwin toy and Quebec case. That case involved the issue of advertising that was directed towards young children. The concern was that advertisers were gearing their commercials and other advertisements to exploit the minds of young children to convince them to get their parents to buy toys or sugary cereals or any other stuff that they that they might want. To address that public policy concern the Quebec legislature passed some laws that were put into their Consumer Protection Act and that law prohibited anyone from using commercial advertising that was directed at persons under 13 years of age. So basically banned any kind of advertising that was specifically directed towards young children age 13 or younger. At that time one of the major toy companies in Canada was Irwin toy. If you haven't heard of Irwin toy you might have heard of some of their actual toys. Something I remember as a kid was Star Wars action figures that's Irwin toy sold those in Canada. They were also responsible in Canada for the slinky the hula hoop and Frisbee. So what Irwin did was it challenged the legality of this new Quebec law in court. It put forward several arguments and one of their major arguments was that this new law was contrary to the Canadian Charter of Rights and Freedoms. So let's now apply those three questions we had looked at to this Irwin toy case. The first question does the charter apply? So again we look at the relevant section of the charter which is section 32 which determine where or what the charter applies to. Specifically under 321b it says that it applies to the legislature and government of each province. So we know that this in the Irwin toy case it involved a law that was passed by the Quebec legislature. So therefore the charter clearly applies to that law. Let's now consider the second question. Does that Quebec law infringe a charter right or freedom? The relevant charter right in this case would be the freedom of expression as stated in section 2b of the charter. Then the court first confirmed what had been stated in a previous case of the Supreme Court that commercial expression can be protected under section 2 as freedom of expression. Then the court said that the laws the particular laws in this case were being used to restrict both a particular range of content and certain forms of expression in the name of protecting children. So the court is saying that these laws made by the Quebec legislature do infringe upon freedom of expression. So therefore the answer is yes. The law in question here does infringe on the charter right of freedom of expression. The third and last question that we need to consider and answer is is that infringement of freedom of expression acceptable as a reasonable limit under section 1 of the charter? To determine if it is a reasonable limit the first requirement is that the law must have a pressing and substantial objective. So does this Quebec law have a pressing and substantial objective? The court with respect to that issue said yes it does. If we look at their actual words here we'll just look at the first sentence where it says the objective of regulating commercial advertising directed at children accords with a general goal of consumer protection legislation to protect a group that is most vulnerable to commercial manipulation. And the court goes on to conclude that the objective of this legislation is a pressing and substantial concern. So that requirement is met. The second requirement to be reasonable limit is that the law only minimally impairs the charter right of freedom. So in this case you know does this Quebec law only minimally impair the right to freedom of expression? The court concludes that a ban on commercial advertising directed to children was a minimal impairment of freedom of sort of free expression consistent with the pressing and substantial goal of protecting children against manipulation through such advertising. And the court specifically pointed out that this was not a total ban on advertising these products that may be used by children, these toys with respect to this particular manufacturer. The court pointed out that advertisers are always free to direct their messages, their message at parents and other adults. They are also free to participate in educational advertising and basically said you know this is your problem as advertisers to develop new marketing strategies to sell your children's products. So the court essentially saying well just because you can't advertise directly to children you can still advertise to their parents and convince them to buy your toys you know for their kids and so therefore this is only a minimal impairment of your freedom of expression. So the the conclusion to that question is it is a reasonable limit that Quebec law is only a reasonable limit of freedom of expression and therefore that Quebec law is considered to be valid.