As it turns out, you have rights.

Unfortunately, so does everyone else. What’s up with that? You have probably heard people complain about their right to free speech being infringed upon when Facebook suspends their account. Maybe you read some guy on Facebook who was very upset he couldn’t go walking in the woods during peak wildfire season and confidently stated he has a right to liberty under the Charter. 

Are we unbeknownst to us, living in a dystopian hellscape where rights are a thing of the past? Is it perchance because of woke people? The answer to both of these very intelligent questions I just wrote is no. 

These rights do exist. Paragraph 2b) of the Canadian Charter of Rights and Freedoms protects speech, while Section 7 of the same document protects liberty, among other things, such as life and security of the person (it’s a broad one). 

What does it mean to have your right to association protected or to have a right to equality? Does it mean you can join a terrorist organization or instill communism in Canada? Surprisingly, it does not mean that, but why? Believe it or not, your rights are more than their catchy title found in the first part of the 1982 Constitutional Act. Living in a common law system means there is an avalanche of jurisprudence and court cases that describe exactly where your rights and freedoms begin and end. In fact, this is all laid out in the very first section of the Charter. 

The Very First Section

Yes. The first section of the Charter, section 1, tells you right off the bat that your rights and freedoms are not absolute. This might sound surprising if you’re a libertarian, as most things would be surprising if you’re a libertarian. In reality, it would make no sense to guarantee absolute rights. Under such a system, you could yell death threats as you please; you could create child abuse material; and you could commit all sorts of hate crimes because your religious text told you to (or just for fun!). It would also mean that the government wouldn’t be allowed to order a lockdown when a pandemic hits. 

It’s sometimes said (in law schools, normal people don’t talk about this) that my right to move my fist ends where your face begins. This might be a fun image, but it doesn’t accurately portray the reality of over 40 million people who sometimes have competing rights. This was one of the first questions the Supreme Court had to answer when the Charter came into force in 1982 (aside from the fun fact that the population was only around 25 million at the time).

The government will sometimes make a decision or pass a law that infringes on our rights as Canadians. Due to checks and balances from our three branches of government, it’s the judicial branch that will make sure the legislative and executive branches stay in their lanes. This is the first misconception: the Charter protects you from the government. It is absolutely useless against other individuals. If your neighbour locks you in his garage and gags you (in this scenario, you are not into it), it’s sequestration at best, and your rights to liberty and speech don’t have to be brought up in court. 

When a court studies whether a right has been violated justifiably, it uses the Oakes test: a four-part study of the issue where failure at any step means that the law or decision is unconstitutional. 

Who was Oakes?

The Oakes test is a pillar of Canadian law and has been used thousands of times by courts to determine the limits of our collective rights. Surely Oakes must have been one important man. He wasn’t, or rather isn’t. David E. Oakes, at least in 2016, was a network installer in Calgary, trying to live a semi-normal life while avoiding conversation about this insanely famous court case that bears his rather uncommon name (2,206th in popularity in Canada). Why is he avoiding conversation about his name? Because Oakes had the very bad timing of getting arrested for possession of drugs for the purpose of trafficking on December 17th, 1981, about the exact time Canada was bringing finishing touches to its Charter, which came into effect on April 17th, 1982. The funny thing is that he was caught with eight one-gram vials of cannabis resin and $649.45: hardly Pablo Escobar.

The Oakes Test

The Oakes test, as mentioned previously, has four parts. Once it’s determined that the government, in some way or another, has limited a right, we have to ask ourselves some questions: 

• Is the government’s objective pressing and substantial?

• Is there a rational connection between the objective and the government’s method?

• Does the method used limit rights as little as possible?

• Do the overall benefits of the method outweigh its negative impacts?

Pressing and Substantial Objective

Limiting a Charter-protected right, as you can imagine, is a pretty big deal. There must therefore be an important issue at hand to justify such an affront. This is usually a formality. You can imagine very few laws get approved by the House of Commons, the Senate, and the Governor General just to restrict rights for trivial matters. 

Some laws, however, become obsolete as time goes on. In R v Big M Drug Mart, a law forbidding stores from being open on Sundays was deemed unconstitutional. The Supreme Court stated that the objective of the law was clearly to compel adherence to the Christian day of rest: hardly a pressing and substantial objective for a liberal and democratic society that claims to be multicultural (according to Section 27 of the Charter). It’s not worth restricting our collective right to freedom of religion so we can have a law that prevents stores from opening on Sundays. The law was literally called the Lord’s Day Act, and defined the « Lord’s Day » as Sunday. Muslim and Jewish business owners were forced to follow this law, infringing upon their rights, not to mention atheists. Are they supposed to legally close on Sunday and then also on their day of worship (for the jews and Muslim? What if they just don’t want to close on Sunday because that’s poor business? The law goes against their rights and beliefs, and is therefore unconstitutional.

Rational Connection

If we passed step one, we just agreed that we have an issue on our hands worthy of restricting rights to move on. Clearly, the next step is to make sure that the method we chose will help solve the problem at hand.

We can look at the Oakes case itself here! It’s pretty clear that Canada has a noble objective in trying to prevent drug trafficking. The issue in this case was that Oakes was presumed to be a trafficker with his measly 8 grams of cannabis. Paragraph 11d) of the Charter protects our presumption of innocence. Oakes was put in a reverse onus situation, which means he had to prove to the court that he could be set out on bail just because he was presumed to be a trafficker before even stepping into court. The Supreme Court could not find a rational connection between the noble goal of eliminating drug trafficking and jailing someone with as little drug on him as Oakes did. 8 grams of cannabis does not a trafficker make.

Another interesting case for rational connection is Mortgentaler, the abortion case. Justices Beetz and Estey of the majority opinion state that the objective of s. 251 (the law criminalizing abortion) is driven by Parliament’s philosophy that the interest in the life or health of the pregnant woman takes precedence over the interest in prohibiting abortions. This includes the interest of the state in the protection of the fetus, when "the continuation of the pregnancy of such female person would or would be likely to endanger her life or health ». Indeed, why are we carving out exceptions for therapeutic abortion if we actually believe it’s murder? With that in mind, the provisions of s.251 were so onerous for pregnant women, through endless consultations that weren’t even available everywhere, that there was no rational connection between providing healthcare for women and jailing them if they dared to receive an abortion.

Minimal Impairment

If we arrive at this step, we can say « urgh fine », the issue is important, and there is a link between the method and the problem, but restricting rights is still a big deal. Are we sure that we are restricting the right as little as humanly possible?

In Thomson Newspapers, the Supreme Court had to determine whether a three-day blackout on political polls before an election was a justifiable infringement on newspapers' right to free speech. The Court calls the section " a very crude instrument in serving the government’s purpose." Basically, banning all polls indiscriminately, regardless of methodology, does not make sense to the Court. We can imagine a version of this law that allows voters to be properly informed through properly administered polls; a blackout is too much of an infringement of freedom of speech.

In Carter, the Supreme Court reversed its judgment from the 1993 Rodriguez case in order to finally rule that assisted suicide (now MAID) should be legal in certain circumstances. Ironically, a blanket ban on assisted suicide is an affront to the right to life protected in section 7 of the Charter since we should have a right to limit our own suffering: the right to life includes the right to die with dignity. Banning assisted suicide stems from the laudable goal to protect vulnerable individuals from being medically killed by their family if perceived as burdens. We can also agree that there is a logical reasoning between the goal and the method. However, the blanket ban was deemed way too broad. It does not minimally infringe on the right to die with dignity. There are ways to allow assisted suicide in some contexts while still protecting vulnerable people.

Proportionality

We have accepted that rights can be limited by laws, but we don’t want to go overboard. A good example of this is the COVID-19 pandemic. In theory, the government telling you not to leave the house is not ideal, but when you put into context the imminent death backed by science, the pros outweigh the temporary cons. 

To give an example from jurisprudence, in Dagenais, former and present members of a Catholic religious order were charged with physical and sexual abuse of young boys in their care at training schools in Ontario. The accused asked the Court for an injunction restraining the CBC from broadcasting the mini-series The Boys of St-Vincent, a fictional account of sexual and physical abuse of children in a Catholic institution in Newfoundland, and from publishing in any media any information relating to the proposed broadcast of the program.

You can imagine CBC wasn’t thrilled about being told by a Superior Court judge what they could and couldn’t broadcast, especially when it came to fiction. It’s one thing to limit the information circulating about a case in order not to skew public opinion, but does this go too far?

My tone may have spoiled this, but the Supreme Court judged that the publication ban in this case could not be upheld. While the ban was clearly directed toward preventing a real and substantial risk to the fairness of the trial of the four respondents, the initial ban was far too broad. It prohibited broadcast throughout Canada and even banned reporting on the ban itself. The ban is simply too intense a violation of the freedom of expression of CBC, even taking into account the right to a fair trial of the other party. Telling the CBC not to broadcast a specific show in British Columbia because of a trial in Ontario is simply not proportional. Does the defence actually benefit from this? Any benefit would absolutely be dwarfed by the harm done to CBC’s rights.

The Court is even clearer in Mentuk when it states that a publication ban should only be ordered when it is necessary to prevent a serious risk to the proper administration of justice, when reasonable alternative measures will not prevent the risk, and "when the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice."

Mentuk was a case about a publication ban protecting not only the identity of an undercover officer, but also the operational methods used by said officer. The Court concluded that while banning publication of the officer’s identity was necessary for the administration of justice, banning operational methods was not justifiable. Although police operations will be compromised if suspects learn that they are targets, media publication will not seriously increase the rate of compromise.  Republication of this information does not constitute a serious risk to the efficacy of police operations, and thus to that aspect of the proper administration of justice.

Do we want to live in a world where the Court hides what the police are doing? Absolutely not. Does it make sense for the court to publish the names and other identifying information of officers who work undercover? That would be insane. This is the balancing act that is at play every time Charter-protected rights come into collision. 

Conclusion

So there you have it, you have rights in Canada, but those rights are not absolute. They also shouldn’t be. They also can’t be. You live in a society with millions of people who also have rights. It’s easy to forget about the give and take of living in a democratic society. 

I’m not saying that I always agree with the Courts. Judges are human, and they are sometimes biased or wrong. What I am saying is that I am tired of hearing people complaining about their rights being trampled, when it’s either not the case, or justified by the very first section of the very Charter they are trying to invoke. We should all know more about how the system works so we can make it better. Knowledge is power and all of that.