The Charter is back. Ubiquitous as COVID, it is being invoked everywhere, from travel restrictions to curfews. The neoconservative Justice Centre for Constitutional Freedoms argues that current lockdown measures violate the Charter-protected right to freedom of religion, comparing it to oppression in Iran. Less hyperbolic is the Canadian Civil Liberties Association’s use of the Charter to argue for the release of prisoners at risk of illness and against police illegally accessing medical records.
As governments and police exploit the COVID pandemic to expand their powers, the Charter is valuable for protecting the vulnerable. But its use is limited. The Charter protects against state infringement on freedom and life, but does not do so for private economic actors. Denial of government healthcare might engage the Charter, but dying from homelessness due to the housing crisis will not. As the COVID pandemic pushes more people into poverty and produces an eviction crisis, the Charter’s limits need to be recognized. Solutions beyond constitutional law must be explored.
In many ways, the Charter is impressive. With a total of 34 sections, it covers everything from habeas corpus to the right of English and French minority communities to receive education in their language. Application of the Charter at the Supreme Court has resulted in better procedural rights for refugees, paved the way for marriage equality and guaranteed the right of prisoners to vote.
Prior to the Charter’s enactment, constitutional amendments still required approval from Westminster. The Charter thus not only extends rights, but as part of the Constitution Act, 1982, it helped untether Canada from the United Kingdom’s control. Unfortunately, such a move was not motivated by decolonization, but rather for Canada to become an independent settler-colonial state. This is evident from Prime Minister Pierre Trudeau’s decision not to consult Indigenous people about the Charter.
But despite Trudeau’s efforts, and largely due to the strong support of activists, the Charter along with the rest of Canada’s constitution became more than top-down law. Fearing a new constitution would result in their assimilation, Indigenous peoples protested in Ottawa and sent delegates to the United Nations. Although not in the Charter, the federal government in response added section 35 to the Constitution Act, 1982, in which “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Pressure from disability activists resulted in their explicit inclusion as a group protected from discrimination.
Thanks to this activism, a wider set of rights are enjoyed. Indigenous rights—which before 1982 had little recognition in settler Canadian law—are now constitutionally protected. Likewise, while legislation protects people with disabilities, the Charter now provides a constitutional guarantee that their rights cannot be revoked.
Of course, these rights are often limited when they bump up against the interests of private industry. This is most evident by injunctions made against Indigenous people defending their land from resource extraction and housing development. Yet, if it were not for the pressure activists put on the federal government in the early 1980s, marginalized people would likely find themselves in an even more difficult position.
That being said, the Charter has serious problems.
As COVID throws our lives into disarray, the Charter has provided a foundation for those seeking to help the vulnerable. Brenda McPhail of the Canadian Civil Liberties Union (CCLA) stated that Charter rights are “so fundamental that when the emergency is over… there’s relatively little question they will be unhesitatingly restored or that there will be hell to pay if they are not.” Worried about the federal government’s introduction of new laws regulating speech on social media, the CCLA asserted that “our supreme law, the Charter of Rights and Freedoms, guarantees freedom of expression.” Regarding the failure to release prisoners at risk of illness, the CCLA along with other groups has denounced government inaction as breaching “the rights guaranteed to all prisoners under… the Charter.”
Charter litigation is critical. Governments and police have used the pandemic as an opportunity to expand their powers. If groups like the CCLA are successful in their litigation, they would not only help defend the vulnerable, but might even increase their well-being. Although reformist, use of the Charter to release prisoners could be a step towards larger changes, such as prison abolition.
But what is ignored is a major limitation of the Charter: it only protects against state action. Per section 32, the Charter applies to “to the Parliament and government of Canada.” Initially, it was uncertain whether this was exhaustive. Ambiguity was resolved in 1986, when the Retail, Wholesale and Department Store Union challenged an injunction—which prohibited them from engaging in secondary picketing—as an infringement of their right to freedom of expression and association. The Supreme Court ruled that section 32 was exhaustive. The Charter is not applicable to private parties, and consequently prohibiting a union from picketing a private business was not a Charter infringement.
Leading constitutional scholar Peter Hogg observed that the Court provided little explanation for why it narrowed the applicability of the Charter. This is perplexing, given how important the case is. A Marxist perspective on the law can help elucidate this. Generally, the law reflects the interest of the ruling class. When legal ambiguity occurs, interpretation usually favors the dominant ideology. Here, the Court was faced with the choice of either furthering the interests of the working class or giving free reign to private property owners. With the majority of Supreme Court Justices coming from upper class families and socialized at law schools that emphasize the virtues of private business, it is unsurprising they chose the latter. Today, poor and working-class people continue to feel the impacts of their choice.
The Charter won’t give you a home
The Charter’s limitation is most stark with the ongoing housing crisis. In 2014, a coalition of groups argued that insufficient housing violated the Charter right to life. The case didn’t even proceed to trial, with the Ontario Court of Appeal determining that “issues of broad economic policy and priorities are unsuited to judicial review.” The court noted, however, that while failure to provide adequate housing did not engage the Charter, the services that are provided must comply with it.
In other words, while the general failure to provide economic necessities does not violate the Charter, denying economic necessities to specific groups of people does. For instance, the Charter cannot protect the lives of transgender people—disproportionately affected by homelessness—who can’t find shelter largely due to the fact that the government has cut the number of beds available; however, if government legislation prohibits transgender people from accessing homeless shelters, this would be a violation of the Charter. This is absurd. Despite both outcomes being nearly identical, the Charter protects the vulnerable in the latter scenario, but not in the former.
This is not to say that an abstract right to access government services is not worthwhile. But such a right will be insufficient when little is provided to begin with. For this reason, the Charter is incapable of fully helping the vulnerable.
Yet, too many fail to appreciate this. Regarding homelessness, the CCLA states that they are “fighting for appropriate accommodation for those experiencing homelessness and against the city’s violations of individuals’ Charter rights.” This statement makes it seem that the Charter will help ensure shelter for everyone, but it will not. Rather, in arguing that failure to ensure social distancing at shelters violates the Charter right to life, the CCLA is simply seeking to improve existing accommodation, without demanding for more accommodation. This distinction is critical, given that COVID’s impact on the economy is resulting in increased eviction and homelessness.
Arguably despite its limitations, the CCLA’s use of the Charter will improve the safety of those who can find shelter. Yet, its overreliance on the Charter as an instrument risks creating the impression that this constitutional instrument is the solution for social problems. To the contrary, the Charter will do little for the increasing number of people who are losing their homes.
If we seek to merely improve the conditions of the vulnerable, the Charter is useful. It can provide protection against state action and provide limited material benefits. For this reason, Charter litigation is necessary.
To transform social conditions, however, we must look for solutions beyond the Charter. Because the Charter does not address private action, it is incapable of systematic change. Protection of life only applies vis-à-vis the state and not the private economy. For this reason, courts have rejected Charter litigation in response to the housing crisis.
As COVID pushes more people into poverty and onto the streets, the Charter’s limits must be recognized. But doing so requires greater care in our discussions. Civil liberty groups should continue to litigate, but they should also be more specific in what the Charter can and cannot do. This would provide space for extra-legal solutions, such as protests, direct action and mutual aid. Otherwise, those who use the Charter will unknowingly contribute to the problems they are fighting to end.
Aidan Simardone writes critically on counter-terrorism and state violence. He is a law student currently completing his Juris Doctor, with an interest in international and human rights law. He is the recipient of the 2020 National Association of Japanese Canadians & Roger Sachio Obata C.M. Prize in International Human Rights Law and the 2020 Ursel Phillips Fellows Hopkinson LLP Prize for the best paper in Sexuality and the Law.