Canadian Constitutional Rights


By now, we are familiar with the protest actions of certain people who have disagreed with government decrees, especially those relating to the COVID-19 pandemic. The protesters have always claimed their constitutional right to demonstrate against what they claim are infringements on their right to freedom of choice and speech. Unfortunately, some of the rights claimed, such as the first amendment, do not correspond with the actual Canadian constitution.

Our constitutional rights are defined in several documents that Canadians should be aware of. The first of these is the Canadian Constitution Act of 1867, formerly known as the British North America Act. This act defined Canada as a country and determined our basic principle of government. Article 91 contains the following clause: It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada.

The next significant step in defining Canadian rights was the 1960 Bill of Rights. Article 1(d) of this bill states that there existed and continued to exist, the right of free speech. However, the introduction to the bill affirmed that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law. In a sense, this bill made explicit the rights that Canadians had already enjoyed in a society under the rule of just laws.

Another piece of legislation that underpins Canadian rights is the Constitution Act of 1982. It includes The Canadian Charter of Rights and Freedoms. Article 1 of this charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

What makes these legislations meaningful and significant in our society, is a set of Canadian values that includes respect for our neighbours, a desire for meaningful peace, and a good government under the rule of just laws. Within these values we balance the right of free speech, the well-being of our fellow citizens and our duty to maintain our democracy.

This is a bit different from the American constitution and its first amendment that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The difference can be seen in legal treatment of hate speech in both countries. The Canadian Criminal Code now includes criminal offences with respect to different aspects of hate propaganda. The Supreme Court of Canada has rejected constitutional challenges to these hate propaganda offences and has also rejected challenges to hate publication provisions in human rights legislation. The Court has ruled that while the provisions restrict freedom of expression, the restrictions are justifiable under Section 1 of the Charter. By contrast, the US Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected free speech under its constitution’s First Amendment.

There is a proverb: you reap what you sow. Our constitutions and laws were designed to ensure that Canadians live a meaningful, peaceful, and lawful life.

To this end our laws include protection from harmful and disruptive forces. This guarantees our most basic rights and freedoms but requires the responsibility of civility and respect for others.