Canadian Law Since the Charter (1982–present)
Introduction
The enactment of the Constitution Act, 1982, including the Canadian Charter of Rights and Freedoms, transformed Canadian law. The Charter gave courts the power to review legislation for compliance with fundamental rights and freedoms, creating a new constitutional order. The post-1982 era has seen the development of Canadian constitutional law in areas ranging from equality and Indigenous rights to criminal procedure and administrative law.
The Early Charter Era (1982–1990)
The first decade of Charter jurisprudence established foundational principles and tested the scope of judicial review.
Freedom of Religion
R v. Big M Drug Mart Ltd., [1985] 1 SCR 295, was an early landmark. The Supreme Court struck down the federal Lord’s Day Act, which required Sunday closing, as violating freedom of conscience and religion under section 2(a). The Court held that the Charter protects both freedom from compelled religious observance and freedom to hold and manifest religious beliefs.
The Oakes Test
R v. Oakes, [1986] 1 SCR 103, established the Oakes test for determining whether limits on Charter rights are demonstrably justified in a free and democratic society under section 1. The test became the central framework for all subsequent Charter analysis.
Criminal Procedure
R v. Stinchcombe, [1991] 3 SCR 326, established the Crown’s duty to disclose all relevant information to the defence, fundamental to trial fairness.
Section 7 — Security of the Person
R v. Morgentaler, [1988] 1 SCR 30, struck down Canada’s abortion law as violating security of the person under section 7. The decision, with fractured reasons, established that criminal restrictions on reproductive choice engage fundamental Charter rights.
Equality Rights
Andrews v. Law Society of British Columbia, [1989] 1 SCR 143, was the first major equality rights decision under section 15. The Court held that equality requires substantive equality, not merely formal equality of treatment. The test requires: (1) a distinction based on an enumerated or analogous ground, and (2) discrimination that imposes a burden or withholds a benefit.
The Watershed Period (1990–2000)
The 1990s saw the expansion of Charter rights into new areas and the development of Aboriginal rights jurisprudence.
Indigenous Rights
R v. Sparrow, [1990] 1 SCR 1075, established the framework for analyzing Aboriginal rights under section 35 of the Constitution Act, 1982. The Court held that section 35 protects existing Aboriginal rights and imposes a duty to consult and accommodate Indigenous peoples before rights are infringed.
Delgamuukw v. British Columbia, [1997] 3 SCR 1010, recognized Aboriginal title as a distinct property right protected by section 35, establishing the requirements for proving title: sufficient, continuous, and exclusive occupation at the time of sovereignty.
Equality Rights Expansion
Vriend v. Alberta, [1998] 1 SCR 493, held that Alberta’s human rights code violated section 15 by omitting sexual orientation as a protected ground. The Court “read in” sexual orientation into the legislation. The case established that underinclusive legislation violates equality rights.
M v. H, [1999] 2 SCR 3, struck down the definition of “spouse” in Ontario family law as excluding same-sex partners, leading to significant reforms in family law.
Same-Sex Marriage
Reference re Same-Sex Marriage, [2004] 3 SCR 698, upheld the federal government’s authority to legislate same-sex marriage. Parliament subsequently enacted the Civil Marriage Act (2005), making Canada the fourth country in the world to legalize same-sex marriage.
The Charter Matures (2000–2014)
Section 12 — Cruel and Unusual Punishment
R v. Smith, [1987] 1 SCR 1045, established the test for cruel and unusual punishment under section 12: whether the sentence is grossly disproportionate to the offence. This test was applied in R v. Nur, [2015] 1 SCR 773, striking down mandatory minimum sentences for gun crimes.
Aboriginal Law
Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 256, granted the first declaration of Aboriginal title in Canadian history, establishing that Aboriginal title encompasses a right to exclusive use and occupation of traditional territories.
Criminal Procedure
R v. Grant, [2009] 2 SCR 353, restructured the framework for excluding evidence obtained in violation of Charter rights under section 24(2), replacing the Collins test with a three-factor analysis: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the accused’s Charter-protected interests, and (3) society’s interest in an adjudication on the merits.
Overbreadth and Section 7
Canada (AG) v. Bedford, [2013] 3 SCR 1101, established arbitrariness, overbreadth, and gross disproportionality as distinct principles of fundamental justice under section 7 and struck down prostitution laws. The Court overruled its earlier Prostitution Reference (1990), demonstrating the evolution of section 7 jurisprudence.
The Modern Era (2014–present)
Medical Assistance in Dying
Carter v. Canada (AG), [2015] 1 SCR 331, struck down the absolute prohibition on physician-assisted death as violating section 7. Parliament enacted Bill C-14 (2016) and later Bill C-7 (2021) to establish a comprehensive regulatory framework for medical assistance in dying (MAiD).
Administrative Law
Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 SCR 653, restructured the standard of review framework for judicial review of administrative decisions, establishing a presumption of reasonableness.
Mandatory Minimum Sentences
R v. Bissonnette, 2022 SCC 23, struck down the requirement of consecutive parole ineligibility periods for multiple murders as cruel and unusual punishment under section 12, applying the gross disproportionality test.
Indigenous Law
The United Nations Declaration on the Rights of Indigenous Peoples Act (2021, SC 2021, c. 14) requires the federal government to take all measures necessary to ensure Canadian law is consistent with the UN Declaration on the Rights of Indigenous Peoples, signalling a new era in Indigenous-state relations.
Language Rights
The Act to amend the Official Languages Act (Bill C-13, 2023) modernized Canada’s language rights framework, including enhanced protections for French in Quebec and recognition of minority-language education rights.
The Impact of the Charter
The Charter has fundamentally transformed Canadian law:
- Judicial review: Courts now routinely review legislation for constitutional compliance, a sharp departure from the pre-Charter era.
- Rights consciousness: The Charter has fostered a culture of rights awareness among Canadians and governments.
- Legislative process: Governments now conduct Charter vetting of proposed legislation and consider constitutional risks.
- Dialogue theory: The interaction between courts and legislatures under the Charter has been characterized as a dialogue in which each branch plays a distinct role in rights protection.
- International influence: Canadian Charter jurisprudence has influenced constitutional courts in New Zealand, South Africa, Israel, and the United Kingdom.
Conclusion
The post-1982 era has seen Canadian law transformed from a system of parliamentary supremacy to one of constitutional supremacy. The Charter has reshaped virtually every area of law, from criminal procedure and family law to Indigenous rights and administrative law. The Supreme Court of Canada has emerged as a leading constitutional court internationally, and the Canadian model of Charter rights — with its structured proportionality analysis and dialogic interaction between courts and legislatures — has become a global reference point.