Canadian Charter of Rights and Freedoms
In 1982, the Parliament of the United Kingdom, at the request of the Dominion of Canada, renamed the British North America Act, 1867 as the Constitution Act, 1867, and at the same time passed the Canada Act of 1982, attaching to the latter Schedule A, the Canadian Charter of Rights and Freedoms (the Charter). Prior to the existence of the Charter, citizens’ rights and freedoms were derived through statute or common law, which was subject to the supremacy of the provincial legislatures to make laws with respect to education. The Charter provides Canadian school boards, teachers, students, and parents with the opportunity to use the Charter’s constitutional rights as both a sword and shield in civil litigation, notwithstanding provincial legislation or common law which appear to preclude a legal challenge. This entry reviews the key rights of the Charter as well as their interpretation, their general application to education, and available judicial remedies; it also provides examples of their application.
Rights, Freedoms, and Procedural Fairness
The Charter, which became part of the written portion of the constitution of Canada in 1982, enshrined, among other things, various categories of rights. The two important categories for Canadian education are those covering fundamental freedoms and legal rights in addition to Section 23 (minority language educational rights), Section 25 (aboriginal treaty rights), and Section 29 (denominational school rights).
All of these rights are subject to Section 1 of the Charter, which states that a restriction of rights is allowed if that breach is within the “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Moreover, the Parliament of Canada or a provincial legislature may invoke Section 33, which provides that a particular “Act or a provision thereof shall operate notwithstanding a provision included in Section 2 (freedoms of conscience, religion, thought, belief, opinion, expression, assembly, and association) and Sections 7 to 15 (amongst which are the “right to life, liberty and security of the person,” and the “right not to be arbitrarily detained or imprisoned”) may be temporarily suspended. Of particular note is that Section 7 of the Charter provides for fundamental fairness or procedural due process for decisions made by statutorily created bodies, such as school boards or their agents, when a person’s “right to life, liberty and security of the person” are at issue.
Application of the Charter
The Charter applies to actions of the government and the Parliament of Canada as well as the governments and legislative assemblies of the provinces. Hence, statutorily created bodies, such as school boards and community colleges, are subject to the Charter. Although they are also created by statute, universities are not subject to the Charter, because they historically act independently of their provincial governments. Individuals in their relationships with other individuals or with nongovernmental bodies are not subject to the Charter. However, where a provincial government establishes legislation that protects a group of citizens from discrimination by other citizens or a private institution, yet fails to include a subcategory of individuals protected from discrimination under the Charter (for example, persons of a particular sexual orientation), the courts will extend that legislative protection to any persons included in the Charter.
One interesting note is that Catholic schools in three provinces—Ontario, Alberta, and Saskatchewan—are publicly funded and constitutionally protected, and thus the Charter rights must be interpreted according to the rights that Catholic schools enjoyed before 1867 in Ontario and before 1905 in Alberta and Saskatchewan, pursuant to Section 29 of the Charter.
The Charter’s rights and freedoms are interpreted by the courts by the purposive method, which takes into account the purpose and rationale of the freedom or right in question within the context of the Charter as a whole, the Canadian legal and political tradition, and the changing needs of Canadian society.
Application to Education
The Supreme Court of Canada determined that although the Charter applies to school boards and hence to school administrators’ actions in relation to teachers and students, and to teachers’ actions in relation to students, some conditions must be met before an individual’s Charter rights are legally permitted.
Initially, the legal onus is upon the party claiming to have been negatively affected by a breach. Once the breach has been established, school boards must show that the restrictions are, pursuant to Section 1 of the Charter, “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This is a two-step analysis in that the restriction must be “prescribed by law”—interpreted as being school board policy or school policy that is directly or indirectly authorized through statute or the common law—and the restriction must be demonstrably justifiable in a free and democratic society. The latter requires that (a) the policy must be important enough to override the Charter right, (b) there must be a rational connection to the limitation of the right sought and the objective of the policy, (c) the impairment of the right must be the minimum required to achieve the objective, and (d) there must be a reasonable proportionality between the negative effect of the impairment and the positive results sought.
Should parts one and two of the above test be met, the restrictions on the Charter rights of students or teachers will be upheld by the courts, notwithstanding that the effect of those restrictions resulted in a breach of those rights.
Charter remedies are of three kinds: (1) the exclusion of evidence at trial, (2) the power to strike down parts of or a complete statute, and (3) “such remedy as the court considers appropriate and just in the circumstances” (s. 24(1)). The last section is most frequently used to attain an injunction, or temporary order from the court, before a trial.
Generally, there are two categories of concerns that involve schools in Canada and the Charter. Category 1 deals with the assertion of a teacher’s or student’s rights to freedom of conscience, religion, thought, belief, opinion, expression, assembly, and association. Category 2 deals with the offended party’s assertion of a violation of her or his legal rights to counsel, freedom from unreasonable search and seizure, security of the person, and the right not to be deprived thereof except in accord with the principles of fundamental justice.
In the first category, the courts have established that school boards may use the Charter to circumscribe students’ and teachers’ rights when to do so is in the best interests of the school in terms of safety, order, and discipline—and, in the case of publicly funded and constitutionally protected Catholic schools, when there are reasonable denominational reasons for doing so—and when the school board meets the requirements of Section 1, especially proportionality. Students have successfully challenged public school boards that attempted to impose a single religion’s course of study, to restrict the bringing of a traditional religious knife (the kirpan) to schools, to remove a special needs child from a regular classroom, and to prohibit materials depicting gay and lesbian families from being used in schools.
In other areas, students have successfully challenged school administrative polices that, in effect, may be characterized as making school authorities agents of the police by allowing dragnet searchers of schools or allowing the police to use the school for police purposes and acting in concert with an investigation.
In general, the free speech (and other) rights of teachers in schools are not as well protected under the Charter as those of students. This may be because of the vulnerability of students, and the primary purpose of education is to serve their best interests, particularly with such rights as are circumscribed in Section 1 of the Charter. Interestingly, recently, the Supreme Court of Canada has, notwithstanding some international opprobrium, held that under Section 43 of Canada’s Criminal Code, the use of force by way of correction is not prohibited by the Charter.
Many of the Charter’s articulated rights are new to Canadian jurisprudence. They and the Charter will continue to develop in relation to educational law directly and indirectly as the rights and freedoms of Canadians of all ages are articulated by the courts.
See also Denominational Schools; Due Process
- Brown, F. A., & Zucker, M. A. (2002). Education law (3rd ed.). Scarborough, ON, CA: Carswell.
- MacKay, A. W., & Sutherland, L. (2006). Teachers and the law. Toronto, ON, CA: Edmond Montgomery.
- Sharpe, R. J., Swinton, K. E., & Roach, K. (2002). The Charter of Rights and Freedoms (2nd ed.). Toronto, ON, CA: Irwin Law.
- Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, Chapter ll. Retrieved September 11, 2006, from http://lois.justice.gc.ca/en/charter/index.html