McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Montr6al
Volume 28
1983
No 4
The Canadian Charter of Rights and Freedoms and the United
States Bill of Rights: A Comparison
Paul Bender*
Although formal constitutional provisions
are not exhaustive of the individual rights
enjoyed by citizens of Canada or of the U-
nited States, a comparison of the new Cana-
dian Charter and the United States Bill of
Rights is illuminating. After discussing cer-
tain general topics relating to the scope of
protected rights, including the requirement
of governmental action, the assertion of
affirmative rights and the degree of protec-
tion offered to victims of the incidental
effects of discrimination, the author under-
takes a comprehensive cataloguing of rights
protected by the relevant United States and
Canadian provisions. He concludes that, in
broad outline, the list of rights textually pro-
tected in each country is similar, but that
M~me si les droits dontjouissent les citoyens
du Canada et des Etats-Unis ne se limitent
pas aux termes de dispositions constitution-
nelles formelles, une comparaison de la
Charte canadienne et du Bill of Rights des
Etats-Unis est rdvelatrice. L’auteur examine
certaines questions d’ordre gfndral se ratta-
chant h l’6tendue des droits prot6g6s, y
compris la nfcessit6 d’interventions gouver-
nementales, la revendication de droits posi-
tifs et le degr6 de protection offert aux vic-
times des effets indirects de la discrimina-
tion. L’auteur dresse ensuite un inventaire
complet des droits expressfment protdg6s
par les constitutions du Canada et des Etats-
Unis, et conclut g6nfralement que quoique
les degrfs de protection ainsi offerts sem-
*Of the School of Law, University of Pennsylvania. The author first became interested in the
Canadian Charter of Rights and Freedoms and its relationship to the U.S. Constitution while
teaching at the summer course in human rights sponsored by the Canadian Human Rights
Foundation and held for the past four years at the University of Prince Edward Island. This
article is based upon lectures on the U.S. Bill of Rights that have been delivered in connection
with that course. A special debt is owed to the P.E.I. students and faculty and to Professor John
P. Humphrey, of the McGill University Faculty of Law, the guiding spirit of the P.E.I.
program.
Some of the ideas in this article were further developed during the author’s appointment as
a visiting lecturer at the University of Alberta Law School during January 1983. The author
wishes to acknowledge the wonderful hospitality of the faculty, staff and friends of that school,
with special thanks to Dean Frank D. Jones, and Mr Justice David C. McDonald.
REVUE DE DROIT DE McGILL
[Vol. 28
there are distinctions which may be of im-
portance, depending upon the approach
taken ultimately by the Canadian judiciary.
For example, the Charter seems to provide
greater opportunities to assert collective
minority rights than does the U.S. Bill of
Rights. On the other hand, the Charter does
not prohibit the “establishment” of religion,
nor does it protect property rights explicitly.
Drawing upon the wealth of United States
case law, the author suggests potential diffi-
culties for Canadian courts grappling with
the Charter, and he points to some possible
solutions that have been devised by U.S.
courts dealing with similar problems.
blent similaires, certaines divergences entre
les textes pourraient s’av6rer importantes se-
Ion l’approche dventuellement prise par les
tribunaux canadiens. Par exemple, Ia reven-
dication de droits collectifs semblerait plus
ais6e sous l’empire de ]a Charte que du Bill
ofRights. En outre, la Charte ne prohibe pas
l’appui de croyances religieuses par l’Etat et
ne protege pas explicitement les droits de
propri6t6. S’inspirant d’une jurisprudence
abondante aux Etats-Unis, l’auteur fait dtat
de certaines difficult6s d’interpr6tation dans
]a Charte, et signale quelques-unes des solu-
tions inventdes par les tribunaux des ttats-
Unis face A des probl~mes semblables.
Synopsis
Introduction
I.
The General Scope of Rights Under the Charter and the U.S.
Constitution
A.
B. The Requirement of Governmental Action
C. When Are Rights Violated: Direct Interferences vs Practical
“Negative” vs “Affirmative” Rights
Effects
II.
Specific Charter Rights and their U.S. Counterparts
A. Legal Rights
B. Due Process in Civil Proceedings
C.
D. Equality Rights
E. Mobility Rights
F. Rights of Religion, Conscience, Free Expression, and
“Substantive” Due Process and the Right to “Privacy”
Association
Conclusion
*
*
*
1983]
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
Introduction
The United States has, for many years, afforded significant constitution-
al protectionI to a broad range of individual political, civil and personal
rights. These rights have been a prominent aspect of government in the U.S.
The constitutionally protected rights and freedoms of U.S. residents are,
indeed, often cited as one of the main positive factors that distinguish life in
the U.S. from that in other countries.
U.S. constitutional rights are ordinarily enforceable through the courts.
Judicial enforcement has become inextricably intertwined with the U.S.
system of constitutional rights and is essential to the strength and quality of
U.S. rights in their present form. Judicial enforcement has, however, also
been a source of deep controversy in the U.S. as the courts have, from time to
time, seemed to play an unusually active role regarding important and widely
debated issues of social policy that are more often left to legislative resolution
in other democratic nations.
Now that Canada has adopted a Charter of Rights and Freedoms with
constitutional status 2 and provided explicitly, as well, for judicial enforce-
ment of those rights 3 –
it seems natural to compare the two systems. Are the
protections for rights offered by Canada’s new Charter basically similar to the
protections that have existed in the United States? Where significant differ-
ences exist, what, if anything, do those differences suggest about the relative
scope and strength of the constitutional protections of individual rights in the
two countries? Will the Canadian judiciary come to play a role regarding
questions of social policy similar to that which the U.S. courts have some-
times seemed to assume? This article and a subsequent one will seek to
compare some of the main features of the new Canadian Charter with
corresponding aspects of the protection of rights under the U.S. Constitution
in an attempt to provide a background for addressing these interesting ques-
tions.
I “Constitutional protection” is used here to refer to guarantees of individual rights that are
“entrenched” in a formal constitutional document. Unlike common law or statutory rights,
constitutionally protected rights cannot be diminished or eliminated by ordinary legislative
action, but only through a specified amendment process. The amendment process applicable to
the Canadian Charter is spelled out in Part V of Schedule B, Canada Act 1982, 1982, c. 11
(U.K.). The amendment procedures for the U.S. Constitution are in art. V of that document.
2Part 1 of Schedule B, Canada Act 1982, 1982, c. I1 (U.K.) [hereinafter the Charter].
Paragraph 52(2)(a) states that the Charter is “the supreme law of Canada”. Any law inconsis-
tent with it “is, to the extent of the inconsistency, of no force or effect” (subs. 52(1)).
‘See the Charter, subs. 24(1).
McGILL LAW JOURNAL
[Vol. 28
A Clarification and Caution – At the outset of such a comparison, it is
appropriate to insert some preliminary words of clarification and caution
about the nature and significance of the task at hand.
In comparing the U.S. and Canadian systems, it is tempting to focus
primarily, or even exclusively, upon the two relevant constitutional texts. In
the case of the Charter, its text is, unquestionably, the proper main focus.
Having come into effect just over a year ago (on 17 April 1982), that
document is as yet unadorned by binding judicial interpretations in the
Supreme Court of Canada. 4 The U.S. text,’ on the other hand (the most
4However, judicial interpretations under the Canadian Bill ofRights, R.S.C. 1970, Appen-
dix I, while not dispositive of the meaning of similar Charter provisions, may nevertheless be
relevant as Canadian courts begin to constue the Charter. See Hovius, The Legacy of the
Supreme Court of Canada’s Approach to the Canadian Bill ofRights: Prospectsfor the Charter
(1982) 28 McGill L.J. 31. For general background on the Supreme Court’s interpretations of
the Bill of Rights, see, e.g., W. Tarnopolsky, The Canadian Bill of Rights, 2d rev. ed. (1975);
Tarnopolsky, “A New Bill of Rights in the Light of the Interpretation of the Present One by the
Supreme Court of Canada” in The Constitution and the Future of Canada [1978] L.S.U.C.
Special Lectures 161; P. Hogg, Constitutional Law in Canada (1977); Gibson, -And One Step
Backward: The Supreme Court and Constitutional Law in the Sixties (1975) 53 Can. Bar Rev.
620; and Berger, The Supreme Court and Fundamental Freedoms: The Renunciation of the
Legacy of Mr. Justice Rand (1980) 1 Supreme Court L.R. 460.
Some Charter provisions are also similar to provisions in the constitutions of countries
other than the U.S., in international documents such as the Universal Declaration of Human
Rights; the International Covenant on Civil and Political Rights, United Nations G.A. Res.
2200, 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1967), reprinted in (1967) 6
I.L.M. 368; the European Convention for the Protection of Human Rights and Fundamental
Freedoms, European T.S. No. 5 (signed 4 November 1950; entered into force 3 September
1953); and the American Declaration of the Rights andDuties ofMan, Res. XXX, O.A.S. Off.
Rec. OEA/Ser. LIV/I.4 Rev. (1965). Interpretations of these provisions by national supreme
courts and by bodies such as the European Court of Human Rights are also of potential
relevance in construing the Charter.
-Although the term “Bill of Rights” is commonly used to refer to all U.S. constitutional
protections for individual rights, the usage is not technically accurate. Strictly speaking the
“Bill of Rights” was the first group of Amendments to the U.S. Constitution. The Constitution
dates from 1789; these Amendments were adopted in 1791. Some of the most important U.S.
individual rights provisions can be found in these 1791 amendments. See, for example, the
protections for the freedoms of speech and religion (First Amendment); the restriction on
unreasonable searches and seizures (Fourth Amendment); the prohibition on compelled self-
incrimination (Fifth Amendment); and the prohibition upon cruel and unusual punishments
(Eighth Amendment). As originally adopted, however, these Amendments did not apply to the
U.S. states (or to local governmental units established under state authority), but constituted
limits only upon the newly formed federal government. See Barron v. The Mayor and City
Council of Baltimore, 7 Pet. 243 (1833). It has only been through a gradual process of
“selective incorporation” into the due process clause of the Fourteenth Amendment (adopted in
1868, shortly after the U.S. Civil War) that most of the provisions of the original 1791 Bill of
Rights have ultimately come to be applicable to state and local governments in the U.S. See,
e.g., Palko v. Connecticut, 302 U.S. 319 (1937); and Duncan v. Louisiana, 391 U.S. 145
(1968). For more on this process of incorporation, see infra, note 19.
1983]
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
important parts of which date from either shortly after the original U.S.
Constitution of 1789 or shortly after the U.S. Civil War of the 1860s), has
been subjected to an enormous amount of authoritative judicial interpretation.
These decisions and opinions often deal with questions on which the U.S.
constitutional text is completely or almost entirely silent, and they also give
meanings to U.S. provisions that could hardly be confidently anticipated –
or in some cases anticipated at all – by a reading of the relevant text. In the
case of the U.S. Constitution, then, primary attention must be focused not on
the bare text, but on the text as it has been authoritatively interpreted in the
Supreme Court of the United States.
In comparing the Charter with the U.S. Constitution, therefore, one is,
to some extent, comparing apples with oranges –
the comparison being
between a bare Canadian text, at the beginning of its life, and an elaborate and
complex system that has been intricately worked out over the years by U.S.
courts. Moreover, the text of the Canadian Charter, like that of the U.S.
Constitution, is quite general in nature; it, too, will undoubtedly undergo a
process of repeated judicial interpretation before the answers to many fun-
damental questions begin to emerge. When we “compare” today’s Charter
with U.S. constitutional rights, therefore, we will often more accurately not
be “comparing” at all, but rather speculating on what the Charter may come to
mean, while using the resolution of similar issues under the U.S. Constitution
as a point of reference and, where it seems appropriate, as a guide. 6
Individual rights provisions also appear in the body of the original 1789 Constitution.
Provisions in that document, for example, prohibit either the federal government or the states
from enacting expostfacto laws or bills of attainder (art. I, 9, cl. 3; art. I, 10, cl. 1); prohibit
the states from impairing the obligation of contracts (art. I, 10, cl. 1); and guarantee jury trials
in federal criminal prosecutions (art. III, 2, cl. 3). Additionally, some of the most significant
U.S. individual rights protections are contained in constitutional amendments adopted after the
Bill of Rights. Most prominent today is the Fourteenth Amendment, which contains two of the
currently most important U.S. provisions-
that states shall not deprive persons of life, liberty
or property without “due process of law”, or deprive persons within their jurisdiction of the
“equal protection of the laws”. In addition to serving as the vehicle for applying the 1791 Bill of
Rights to the states, the due process clause also had independent significance as a protection for
liberty and property, and a vast jurisprudence has, of course, also developed in connection with
Fourteenth Amendment equal protection guarantees. Other Civil War and subsequent amend-
ments also contain important individual rights protections. See, for example, the Thirteenth
Amendment (1870) (prohibiting slavery); the Fifteenth Amendment (1870) (prohibiting racial
discrimination in voting); the Nineteenth Amendment (1920) (gender discrimination in vot-
ing); and the Twenty-Fourth (1964) and Twenty-Sixth (1971) Amendments (outlawing the poll
tax in federal elections and prohibiting age discrimination in voting for persons over eighteen).
This article treats all of these U.S. constitutional protections, not just those in the 1791 “Bill of
Rights”.
6As noted supra, note 4, U.S. interpretations and solutions are by no means the only relevant
comparative decisional materials.
REVUE DE DROIT DE McGILL
[Vol. 28
The caution that should be interposed is this: Although national constitu-
tions unquestionably play an important role in determining the level of respect
for individual rights in a nation, their role is by no means exclusive. Neither
the Canadian Charter nor the U.S. Constitution represent the only – or even
the primary –
protections for individual rights in their respective countries.
Both nations protect rights extensively through the common law, and through
national, provincial, state, and local legislation. Rights may also be protected
through adherence to international treaties and, in the U.S., under State
constitutions, provisions of which were the model for the original U.S. Bill of
Rights and which have continued to play an important role in some areas.
Indeed, both the Canadian Charter and the U.S. Constitution make absolutely
clear that the federal constitutional protections they embody are not intended
to preclude the application of other sources of rights .’
The Charter and U.S. Constitution thus represent national minimum
protections of individual rights. Comparing such constitutional protections is
emphatically not equivalent to comparing the actual status of individual rights
in Canada and the U.S. as a whole, or within a particular state or province.
Rights weakly protected through a national constitution, or not protected at all
by that constitution, may not need to be protected – given national traditions
and prevailing societal attitudes and practices – or they may be protected by
other sources of law. In the U.S., for example, most federal constitutional
provisions, as we shall see, apply only as against “governmental” action.
There is, however, an extensive body of federal and state legislation prohibit-
ing similar private violations, such as private racial or gender discrimination
in employment or housing. In the U.S. there are also presently few, if any,
affirmative constitutional entitlements, such as to public assistance or medi-
cal care for the indigent. Legislatively created rights to these benefits are quite
common, however. On the other hand, drafters or interpreters of constitutions
may be motivated to state or develop strong constitutional protections largely
because other mechanisms have not proved satisfactory in practice. To take
another U.S. example, it is likely that the judicial development of the
“exclusionary rule” (excluding the fruits of unconstitutionally obtained evi-
dence from criminal trials) was influenced heavily by the failure of other,
non-constitutional mechanisms (such as private tort actions and criminal
prosecutions) adequately to control police misbehavior.
Three Modes of Comparison: The Scope, Strength and Enforceability of
In comparing the quality and character of the protection of indi-
Rights –
7See the U.S. Constitution, Amendment IX: “The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by the people”. See
also the Canadian Charter s. 26: “The guarantee in this Charter of certain rights and freedoms
shall not be construed as denying the existence of any other rights or freedoms that exist in
Canada.”
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CANADIAN CHARTER AND U.S. BILL OF RIGHTS
vidual rights under different constitutions, three important subjects need
investigation. First, it is necessary to examine the catalog of rights that enjoy
protection under each constitution. Does each constitution, for example,
protect freedom of speech? Does each protect the rights of defendants in
criminal proceedings? Is there protection for “property” rights? Are certain
kinds of discrimination or unequal treatment prohibited? Does the constitu-
tion in question confer any “affirmative” rights, such as mandatory entitle-
ments to welfare, employment or public education? When rights are within
the constitutional catalog, against whom do they apply? If there is a constitu-
tional right to be protected from racial discrimination, for example, does that
include a right to be protected from private discriminatory behavior, or only
from governmentally imposed racial discrimination?
Once the applicable constitutional rights are identified, a second vital
question –
less obvious, perhaps, but at least equally important in the long
run – has to do with the level or strength of the protection that is afforded to
rights under each constitution. Some constitutional rights may perhaps be
absolute, admitting of no interference or impingement, no matter how strong
the asserted governmental justification. Under the U.S. Constitution, for
example, the right to be free from governmentally compelled self-
incrimination and the prohibitions upon the establishment of national and
state religions probably fall into this category. A large number of important
U.S. constitutional rights, however, do bow to sufficiently strong gov-
ernmental justifications, and among these are some of the most well recog-
nized and fundamental of rights, such as the freedoms of expression and
religion.
Once a right is thus established as what might be called a qualified, rather
than an absolute, right, the critical question concerns the strength of the
justification requirement that the applicable constitution imposes as a condi-
tion of governmental interference. This requirement may be so strong as to
make the right virtually absolute; on the other hand, a justification require-
ment may, if weak enough, result in no effective constitutional protection at
all. And there is, of course, a large middle ground; the variety of possible
standards of justification for permissibly impinging upon constitutionally
protected interests is almost infinite. In the United States, for example, some
constitutionally protected interests may be overridden by regulations that are
found merely to be conceivably relevant to “legitimate” governmental in-
terests; in other areas, regulations must be shown to be “substantially” related
to “important” governmental concerns; in still other areas, rights may be
restricted only upon a demonstration that doing so is “necessary” to serve
“compelling” governmental interests.
The third important area for inquiry has to do with the available means
for enforcing rights. The most prominent questions here concern judicial
McGILL LAW JOURNAL
[Vol. 28
enforcement. In what circumstances is judicial enforcement available? What
sorts of remedies, such as damages, injunctions, exclusion of evidence, and
declaratory judgments, will courts afford? Do doctrines exist that permit or
require courts to decline to enforce rights, even when they are violated
without sufficient justification, or that permit legislatures to forbid or prevent
courts from enforcing rights in some circumstances? Even the strongest of
rights will lose much (although certainly not all) of their strength when no
judicial enforcement is available and when resort must be had to more
informal or political remedies.
These three topics cover an enormous range. The present article restricts
itself to the first of these subjects. It undertakes a comparison of the individual
rights interests afforded at least some protection under the Canadian Charter
and the U.S. Constitution. A subsequent article will consider the remaining
two questions: the relative strengths of rights vis-d-vis asserted governmental
justifications in the two systems, and the availability of judicial enforcement
of rights under each system.
I.
The General Scope of Rights Under the Charter and the U.S.
Constitution
The lists of individual rights afforded protection under the Canadian
Charter and the U.S. Constitution bear a great deal of similarity. Both
constitutional texts, for example, protect explicitly the freedoms of expres-
sion and assembly,8 and the freedom of religion.9 Both texts expressly protect
a range of important rights of defendants in criminal proceedings, including
the rights to counsel and jury trial,’0 and protection against arbitrary or
unreasonable searches and arrests,” compulsory self-incrimination, 2 cruel
and unusual punishments, 3 ex postfacto laws, 4 and double jeopardy.’5 Both
constitutions also offer protection against certain forms of discriminatory
treatment.’ 6 The text of the Canadian Charter, in addition, offers explicit
protection to mobility rights, 7 to the rights to vote in federal and provincial
‘Charter, subss 2(b) and 2(c); U.S. Constitution, Amendment I.
9Charter, subs. 2(a); U.S. Constitution, Amendment I.
“0Charter, subss 10(b) and 1 (f); U.S. Constitution, Amendment VI, and art. III, 2, cl. 3.
“Charter, ss 8 and 9; U.S. Constitution, Amendment IV.
“Charter, subs. 11(c); U.S. Constitution, Amendment V.
“Charter, s. 12; U.S. Constitution, Amendment VIII.
“Charter, subs. I 1(g); U.S. Constitution, art. I, 9, ci. 3; art. I, 10, cl. 1.
“-Charter, subs. 11 (h); U.S. Constitution, Amendment V.
16Charter, s. 15; U.S. Constitution, Amendment XIV, 1.
“1 Charter, s. 6.
19831
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
parliamentary elections and to the right to be a candidate in such elections. 18
These rights are not explicit in the text of the U.S. Constitution, but a number
of Supreme Court decisions show that they do, in fact, receive a substantial
degree of federal constitutional protection in the United States.”
“Charter, s. 3.
9 See, e.g., Edwards v. California, 314 U.S. 160 (1941); Shapiro v. Thompson, 394 U.S.
618 (1969); and United States v. Guest, 383 U.S. 745 (1966) (mobility rights); Harper v.
Virginia State Board of Elections, 383 U.S. 663 (1966); and Kramer v. Union Free School
District No. 15, 395 U.S. 621 (1969) (voting); Williams v. Rhodes, 393 U.S. 23 (1968)
(candidacy).
Several constitutional textual bases have been suggested in the cases for the U.S.
protection of rights of mobility and travel. These include the U.S. due process clauses
(prohibiting federal or state deprivations of “liberty” without “due process of law”); art. V, 2,
cl. 1 (“the citizens of each state shall be entitled to all privileges and immunities of citizens in
the several States”); the “privileges or immunities” clause of the Fourteenth Amendment (“no
state shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States”); and the “commerce clause” of art. I, 8, cl. 3 (“the Congress shall have
power … to regulate commerce … among the several States”).
Most U.S. voting and candidacy cases rely on equal protection principles. See, in addition
to the cases cited above, San Antonio School District v. Rodriguez, 411 U.S. 1 (1973). Other
relevant U.S. constitutional provisions in these areas are the First Amendment (protecting the
freedoms of speech, press, assembly and petition, and sometimes seen as protecting political
activity generally); the Fifteenth, Nineteenth and Twenty-Sixth Amendments (prohibiting
discrimination in voting on account of race, gender or age); the Twenty-Fourth Amendment
(prohibiting poll taxes in federal elections); art. I, 2, cl. 1 and the Seventeenth Amendment
(providing that the House of Representatives and Senate shall be chosen “by the people”); and
art. IV, 4 (providing that the United States “shall guarantee to every State… a Republican
form of government”).
Close scrutiny of the U.S. constitutional provisions cited in this and the preceding
footnotes will create some doubt in the reader’s mind about whether it is strictly accurate to say,
as the text implies, that the rights mentioned in the paragraph are, in fact, generally applicable
in the U.S. to all governmental action, whether under federal or state authority. For example,
the U.S. First Amendment, the primary textual basis for constitutional expression and religious
rights, provides that “Congress shall make no law” interfering with speech or the free exercise
of religion [emphasis added]. And although the U.S. Fourth, Fifth, Sixth, and Eighth Amend-
ments (the primary textual bases for most of the rights of defendants in criminal proceedings)
do not contain this explicit textual limitation to acts of the federal Congress, the Supreme Court
authoritatively held, in Barron v. The Mayor and City Council of Baltimore, supra, note 5,
249, that all of the first eight Amendments were, like the First Amendment, intended solely as
limitations “on the exercise of power by the government of the United States, and [are] not
applicable to the legislation of the states”. A converse textual problem applies to the equal
protection clause of the Fourteenth Amendment, which is in terms applicable only to “state”
action. (Other rights provisions, such as the Fifteenth, Nineteenth, Twenty-Fourth and Twen-
ty-Sixth Amendments are, however, expressly made applicable to action by “the United States
or by any State”. See also art. I, 9, cl. 3 and art. I, 10, cl. 1, prohibiting expostfacto laws by
the federal and state governments, respectively).
In fact, the implication in the text, that the rights mentioned are applicable to both state and
federal governments in the U.S., is generally correct. This result has been reached through
construction of the “due process” clause of the Fourteenth Amendment. Over the years after the
adoption of the Fourteenth Amendment, the free expression and religion guarantees of the First
REVUE DE DROIT DE McGILL
[Vol. 28
Although there is thus a broad range of basic similarity between the
rights protected under the Charter and the U.S. Constitution, there appear to
be some significant differences in coverage as well. The official languages
and minority language educational rights in the Charter,”0 for example, have
no apparent U.S. counterparts, in either text or judicial decision.’, Nor does
the U.S. Constitution contain any general principle resembling that contained
in s. 27 of the Charter, which requires that the Charter be interpreted “in a
manner consistent with the preservation and enhancement of the multicultural
heritage of Canadians”. On the other hand, the Charter contains no prohibi-
tion, as does the U.S. First Amendment, upon governmental “establishment”
of religion. Nor does the Charter explicitly protect property rights to the
extent found in the U.S. constitutional text. The U.S. due process clauses, for
example, apply to deprivations of “life, liberty, or property”,2 whereas the
corresponding language in the Charter covers deprivations of “life, liberty
and security of the person”.? The U.S. Fifth Amendment, moreover, pro-
vides that “private property” shall not “be taken for public use, without just
compensation” and the original Constitution provides further that states shall
not enact laws “impairing the obligation of contracts”. 24 The Charter contains
no directly equivalent provisions.
In addition to these evident textual differences, there appear to be other
significant differences as well, due to the fact that the U.S. Constitution has,
through judicial interpretation, come to embrace some rights that are not at all
Amendment were gradually made fully applicable by the U.S. Supreme Court to state and local
governmental action through “incorporation” of those guarantees into the due process clause of
the Amendment, which applies to “state” action. See, e.g., Gitlov v. New York, 268 U.S. 652
(1925); Palko v. Connecticut, supra, note 5; and Everson v. Board of Education, 330 U.S. 1
(1947). The same process occurred with regard to most of the criminal procedure guarantees of
the Fourth, Fifth, Sixth, and Eighth Amendments. See Duncan v. Louisiana, supra, note 5. In
the opposite direction, the equal protection guarantee of the Fourteenth Amendment has been
effectively “incorporated” into the due process clause of the Fifth Amendment, which applies
to federal governmental action. See Bolling v. Sharpe, 347 U.S. 497 (1954).
10Charter, ss 16 to 23.
2′ But see Lau v. Nichols, 414 U.S. 563 (1974), suggesting possible U.S. constitutional
objections, on grounds of equal protection, in a situation where a public school system offered
education only in the English language, but where a substantial number of students in that
system did not speak English and were not offered supplemental remedial instruction in
English.
2These clauses appear in the Fifth and Fourteenth Amendments, the former applicable to
federal governmental action, the latter to state action [emphasis added].
Charter, s. 7 [emphasis added].
2NArticle I, 10, cl. 1. Nor does the Charter appear to protect “the right of the people to keep
and bear arms” (in the U.S. Second Amendment) or limit the right of government to use private
homes to quarter soldiers (Third Amendment). These rights have not been important ones in
judicial applications of the U.S. Constitution, although the right to bear arms is often invoked
in political debates concerning gun control legislation in the U.S.
1983]
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
apparent in the constitutional text. Chief, perhaps, among these potential
differences, is the quite recently developed U.S. right to “privacy” –
the
right responsible, for example, for the 1973 decision of the U.S. Supreme
Court that most abortion prohibitions are unconstitutional. 5 The Canadian
Charter has no provision clearly embodying this privacy right, although it
may emerge ultimately in the course of judicial interpretation, as it has in the
U.S. United States law also contains a general principle of “substantive” due
process, requiring that all regulations impinging upon liberty and property be,
to some degree, “reasonable”
in light of some legitimate government
policy,6 and a similar general “rationality” requirement for governmental
classifications that has been developed under the equal protection clause of
the Fourteenth Amendment.27 These are relatively weak rights at the present
time, but they have some theoretical and practical significance. It is not clear
whether – or to what extent –
either of these general rationality rules will be
recognized under the Charter.
Before exploring, in greater detail, some of the most important potential
similarities and differences in the catalogs of rights protected under the
Charter and U.S. Constitution, it is useful to consider three general topics
concerning the scope of protected rights that are relevant in examining the
breadth of all of the rights covered by the two documents.
“Roe v. Wade, 410 U.S. 113 (1973). See also Griswold v. Connecticut, 381 U.S. 479
(1965) (contraceptive use by married persons protected by a similar principle). The U.S.
privacy right also applies, in some circumstances, to “informational” privacy, i.e., to situations
where the government seeks to collect or disseminate data about “private” behavior without
directly regulating that behavior. See Whalen v. Roe, 429 U.S. 589 (1977).
“6The degree of judicial review of reasonableness has varied considerably under this
doctrine over the years. Compare the relatively substantial level of review indicated in Lochner
v. New York, 198 U.S. 45, 56 (1905) (“Is this a fair, reasonable and appropriate exercise of the
police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with
the right of the individual to his personal liberty or to enter into those contracts in relation to
labor which may seem to him appropriate or necessary for the support of himself and his
family?”) with the extremely low level of review suggested by the currently applicable standard
of Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 488 (1955) (“It is enough that
there is an evil at hand for correction, and that it might be thought that the particular legislative
measure was a rational way to correct it. The day is gone when this court uses the Due Process
Clause… to strike down state laws, regulatory of business and industrial conditions, because
they may be unwise, improvident, or out of harmony with a particular school of thought”).
“As with the substantive due process rule of rationality, the equal protection rationality
standard has varied in its strength over the years. Compare the relatively substantial test of F.S.
Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) (“The classification must be
reasonable, not arbitrary, and must rest upon some ground of difference having a fair and
substantial relation to the object of the legislation, so that all persons similarly circumstanced
shall be treated alike”) with the much more permissive standard of Railway Express Agency,
Inc. v. New York, 336 U.S. 106, 110 (1949) (a legislative classification is reasonable if the
local authorities “may well have concluded” that it responded to the legislative concern).
822
A.
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“Negative” vs “Affirmative” Rights
Individual rights under the U.S. Constitution are generally “negative”
rather than “affirmative” in nature. United States constitutional rights, that is,
are ordinarily rights to be free from restrictions on individual freedom and
autonomy, rather than rights to affirmative entitlements from government or
other individuals. Take, for example, the right of free expression. In the U.S.
this right clearly does not include a right to demand the financial resources
that would be required to engage in a desired level of public communication of
ideas –
to the resources necessary to publish and distribute a tract or
newspaper, for example, or to establish and run a radio or television station,
or to rent an arena for a public meeting. Rather, the free expression right in the
U.S. is the right, absent a sufficiently strong governmental justification, to be
free from governmental prohibitions or restrictions upon expressive activi-
ties, assuming that the individual otherwise has the wherewithal to engage in
them. Similarly, the abortion right recognized by the U.S. Supreme Court in
1973 is a right to be free from governmental prohibitions of certain abortions
–
it is not a right to financial support for the costs of abortion, even for those
otherwise unable, for financial reasons, to obtain the desired abortion
procedure. 28 The right to interstate mobility in the U.S. is likewise a right to be
free from governmental interference with travel or migration – not a right to
the resources necessary to permit one to move or to travel.
Many United States rights are actually expressed in the U.S. constitu-
tional text in this negative fashion. To take a free expression example again,
the U.S. First Amendment provides that “Congress shall make no law … ab-
ridging the freedom of speech, or the press”.29 The U.S. Fourth Amendment
provides, in somewhat the same spirit, that the right to be “secure… against
unreasonable searches and seizures, shall not be violated”. The United States
due process right is similarly stated, not as an affirmative right to due process
as such, but as a right not to be “deprive[d] … of life, liberty, or property,
without due process of law”.30 And some U.S. rights that may appear, at first
glance, to be affirmative in nature turn out, in fact, to have predominantly
negative characteristics. The judicially developed right of indigents to have
free counsel provided at trial or appeal in serious criminal cases, for
example, 3 may seem to be an affirmative entitlement, but that “entitlement”
2SeeMaherv. Roe, 432 U.S. 464 (1977); andHarris v. McRae, 448 U.S. 297,316 (1980)
(“[A]lithough government may not place obstacles in the path of a woman’s exercise of her
freedom of choice, it need not remove those not of its own creation”).
29 Emphasis added.
“Emphasis added.
3’See Gideon v. Wainwright, 372 U.S. 335 (1963); and Douglas v. California, 372 U.S.
353 (1963). Another U.S. right that has both negative and affirmative aspects is that of persons
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CANADIAN CHARTER AND U.S. BILL OF RIGHTS
applies only when the individual is seeking to resist the imposition of gov-
ernmentally imposed criminal sanctions; the right is really an aspect of the
right not to be convicted of a crime without a fair trial. There is no equivalent
United States constitutional right to the provision of free counsel for the
purposes of asserting affirmative legal claims, such as tort, property or
contract rights.3” Nor has the U.S. given constitutional status to affirmative
entitlements to public assistance, unemployment compensation or free
medical care –
although those rights are
very often conferred by federal or state legislation.33
or even to free public education –
Will the individual constitutional rights newly created by the Canadian
Charter be predominantly negative in nature, as is true under the U.S.
Constitution, or will the Charter be read as establishing some significant
affirmative constitutional entitlements as well? By and large, the Charter’s
language is distinctly more affirmative in cast than is the corresponding U.S.
text. Unlike the clearly negative U.S. First Amendment, for example, the
Charter provides that “[e]veryone has the … freedom of… expression”.’
Similarly, one of the Charter’s basic mobility rights provisions prescribes
that “every citizen of Canada has the right to enter, remain in and leave
Canada”.35
It is certainly conceivable that Canadian courts will, immediately or
ultimately, read these or similar provisions as affording a basis for claims of
constitutional entitlement to affirmative governmental assistance in some
areas. But the more immediately likely reading of this sort of language,
despite its affirmative cast, is that negative rights are all that are intended.
Note, in this connection, the Charter’s use of the word “freedom” (rather than
the word “opportunity”, for example) to describe the constitutional entitle-
ments of Canadians in the area of expression. A “freedom” suggests strongly
that the entitlement is, in fact, merely one to be free from governmental
incarcerated for crime or committed for mental disease or retardation to safe and humane
conditions of confinement. See Estelle v. Gamble, 429 U.S. 97 (1976); and Youngberg v.
Romeo, 457 U.S. 307 (1982).
12 Cf. United States v. Kras, 409 U.S. 434 (1973) (government need not waive filing fee for
voluntary bankruptcy for one financially unable to pay that fee).
3 Although there are generally no affirmative U.S. constitutional rights to welfare and
similar government benefits, the U.S. equal protection clause often provides a basis for arguing
that restrictions in benefit programs constitute unconstitutional classifications or discrimina-
tions. Thus, a benefit program that excludes women may constitute constitutional gender
discrimination, even though the entire program might constitutionally be abandoned. See,
e.g., Frontiero v. Richardson, 411 U.S. 677 (1973). Since such programs are rarely aban-
doned when unconstitutional discriminations are held to be present in them, a successful equal
protection attack often has a practical effect similar to the recognition of an affirmative right.
‘4Charter, subs. 2(b).
“‘Charter, s. 6.
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prohibitions and restrictions (in the absence of a sufficiently strong gov-
ernmental justification). Even the word “right” (used, for example, in the
mobility rights provisions of the Charter) seems susceptible to a similar
construction –
that is, that the right to leave Canada is the right to be free
from interference with such activity, not a right to affirmative governmental
assistance for one who wishes to leave. If Canadian courts were to read
provisions like these as establishing affirmative rights, they would have to
decide which governmental units –
federal, provincial or local – bore the
constitutional obligation to provide the required assistance, and they would
also have to decide what the required level of affirmative assistance should
be. Would the right to affirmative assistance for politically expressive be-
havior, for example, be a right to some minimum ability to communicate in
the political arena (and how would that minimum be determined)? Would it be
a right to equal ability to communicate (as compared with persons expressing
contending views on the same issues) or perhaps a right to the assistance
necessary to bring one to some “average” level of opportunity? The Charter
provides little or no guidance in answering these questions, should answers
become necessary. The desire of Canadian judges to avoid that necessity may
provide a strong stimulus toward adopting a basically negative conception of
most Charter rights.
There is, however, at least one provision of the Charter that seems, on
the basis of its language, to demand at least very serious consideration as a
possible source of affirmative constitutional entitlements. That provision is
the first clause of s. 7 –
the Charter provision closest in language to the well
known U.S. “due process” clauses. The second clause of s. 7 provides, in
parallel with the U.S. provisions, that individuals have the right not to be
deprived of life, liberty or security of the person “except in accordance with
the principles of fundamental justice”. That right is clearly one of the nega-
tive, rather than affirmative, variety, being a right to resist governmental
deprivations that are procedurally unjust.36 But what are we then to make of
the first clause of s. 7, which provides that everyone, in addition, has the right
“to life, liberty and security of the person”? Unless this language merely
duplicates the second clause (an interpretation quite at odds with the presence
of two separate clauses and the use of the word “and” to connect them),
6The principal focus of this right is undoubtedly upon deprivations that take place through
criminal and quasi-criminal proceedings. Specific limitations on criminal prosecutions consti-
tute the remainder of the “Legal Rights” portion of the Charter, of which s. 7 is the first
provision. Whether this part of s. 7 also gives rights to resist governmental deprivations
through civil proceedings, and whether it can be read (as have the U.S. due process clauses) as
requiring deprivations that are substantively as well as procedurally just, are questions that are
treated in connection with the discussion of some specific Charter rights. See infra, Parts II(B)
and II(C).
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CANADIAN CHARTER AND U.S. BILL OF RIGHTS
something beyond a rule requiring fair procedures must be intended. What
could that something be?
One possibility, and perhaps the most natural reading, is that the first
clause of s. 7 means to impose substantive limits on governmental depriva-
tions of life, liberty and personal security, just as the second clause imposes
procedural limitations. That is, if a statute were to authorize conviction and
imprisonment for a criminal offense without a fair trial, that would presum-
ably violate the second clause of s. 7, whereas if the law were procedurally
fair in operation but substantively unreasonable –
if it, for example, crimi-
nalized private behavior without an adequate justification for doing so in light
of legitimate governmental concerns 37 –
that might violate the first clause of
s. 7. Read this way, the first clause of s. 7 would constitute a “substantive”
due process provision similar in nature to that employed from time to time by
United States courts under the Fourteenth Amendment.” It would still,
however, be a right that is essentially negative in character.
But the first clause of s. 7 might also plausibly mean that everyone has
the right to life, liberty and personal security in the sense that everyone has the
constitutional right to demand some level of affirmative governmental assist-
ance in protecting these vital personal interests. If so, this clause would
establish a set of affirmative constitutional rights. Such rights, in their mildest
shape, might take the form of constitutional requirements that government
provide minimally adequate police protection, and that civil and criminal
remedies for trespass to person, and perhaps to property, also be available.
Recognition of such constitutional rights would probably not impose any
obligations on government in Canada that it does not already seek to meet,
although it would certainly provide a basis for allegations that existing
protections are not, in fact, adequate in some particular geographical or
subject-matter areas. Recognition of such rights might perhaps also raise
federalism issues regarding which governmental unit is to bear particular
constitutional obligations. 39
Broader forms of affirmative s. 7 rights to governmental assistance in
protecting life, liberty and security of the person would have a greater
potential impact. If there are such affirmative rights, it would not, for
example, be wholly implausible to argue that the required protection includes
37As, for example, a law criminalizing the use of contraceptives by married couples. See
Griswold v. Connecticut, supra, note 25, striking down such a state statute.
8U.S. “substantive” due process is discussed infra, Part II(C).
‘9Subgection 32(1) of the Charter would seem relevant in allocating these affirmative
governmental obligations, should they be found to exist. That section applies the Charter to the
federal and provincial governments “in respect of all matters within [their respective] author-
it[ies]”.
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not only protection against criminal or tortious deprivations by other private
individuals, but also governmental assistance in maintaining life, liberty and
security against the ravages and demands of nature. The Charter might thus
require governmental public assistance programs providing the food, shelter
and medical care necessary to sustain life, health and a minimally adequate
quality of life. United States courts, as noted above, have not similarly
constitutionalized rights to welfare or public assistance, but the U.S. constitu-
tional text has no peg as convenient as s. 7 upon which to hang such a set of
affirmative rights. If Canadian courts do enter this area, existing public
assistance programs may, in general, prove adequate to pass constitutional
muster, although litigation would certainly be possible concerning particular
applications of these programs, or allegedly unconstitutional exclusions from
them. Lurking behind such a set of rights would be knotty problems regarding
what constitutes a constitutionally acceptable minimum level of assistance in
various areas, whether lack of governmental resources can be invoked as
justification for failing to meet those levels, and whether the obligations are
imposed upon the federal or provincial governments. 40
B.
The Requirement of Governmental Action
Constitutional rights under the United States Constitution are, with one
historically important exception, rights to be free from governmental (or
governmentally related) interferences with constitutionally protected activ-
ity. Purely private deprivations of life, liberty or property, such as murder,
kidnapping or larceny, are illegal or criminal under state or federal law, but
they are not unconstitutional, nor are private searches or seizures (such as
burglaries), private interferences with freedom of speech or freedom of
religion, or private racial or gender discriminations. 4′ The prominent excep-
0 On the latter issue, see ibid. There are a few otherrespects in which the Charter may create
rights that are primarily affirmative in character. Subsection 4(1) of the Charter requires
federal and provincial parliamentary elections every five years (subject to the limits of subs.
4(2)); s. 5 requires legislative sessions at least once a year; and s. 3 confers affirmative rights to
vote in parliamentary elections and to stand for election. Some aspects of the official languages
provisions (ss 16 to 22) may also be viewed as creating affirmative rights in that they require the
provision of bilingual governmental services. (These provisions, however, can perhaps also be
seen as “negative” prohibitions upon governmental discriminations not otherwise covered by
the equality rights provision of Charters. 15.) Finally, it seems possible to read the Charter
section dealing with minority language educational rights (s. 23) as not only prohibiting
unequal treatment for language minorities in certain circumstances, but as also imposing an
affirmative Charter requirement that the relevant governmental unit provide some minimum
level of “primary and secondary school instruction” for all children.
11 With regard to Fourteenth Amendment rights, see, e.g., Civil Rights Cases, 109 U.S. 3,
11 (1883) (“It is State action of a particular character that is prohibited. Individual invasion of
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CANADIAN CHARTER AND U.S. BILL OF RIGHTS
tion to this rule is the Thirteenth Amendment’s prohibition upon slavery or
involuntary servitude. This prohibition applies to private, as well as to
governmental behavior. 2
Although the general doctrine that U.S. constitutional rights apply only
against governmental action is a firmly established one, the question of what
action should be considered to be “governmental” has produced –
and
continues to produce –
a substantial amount of difficult litigation. It is clear
that “governmental action” for purposes of the doctrine includes not only
formal federal, state and local legislation, but also the regulations, internal
policies and individual official activities of government agencies, officials
and employees. It is also clear that governmental action is present even when
such official individual behavior is actually prohibited by applicable legisla-
tion. Thus, a state police officer in the U.S. acts as the government for the
purposes of this doctrine when he conducts an unreasonable search and
seizure in the course of an official criminal investigation even when, in doing
so, the officer violates state law as well as the standards of the Fourth and
Fourteenth Amendments. 43 Moreover, private citizens may violate the U.S.
Constitution when they conspire in unconstitutional behavior by government
individual rights is not the subject-matter of the amendment”). The proposed Equal Rights
Amendment would also contain an express governmental action limitation, applying to gender
discriminations “by the United States or by any State”. Similarly, it has been clearly understood
in the U.S. that the entire original 1791 Bill of Rights was intended only as a limitation on
governmental action (initially only federal governmental action), despite the fact that this
limitation is not made explicit in every Amendment. See Barron v. The Mayor and City
Council of Baltimore, supra, note 5.
4 Thus, the Thirteenth Amendment “is not a mere prohibition of State laws establishing or
upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not
exist in any part of the United States”. CivilRights Cases, ibid., 20. See also Jones v. AlfredH.
Mayer Co., 392 U.S. 409 (1968).
Although private invasions of rights do not ordinarily violate the U.S. Constitution, the
U.S. Congress may nevertheless have constitutional power to prohibit such invasions. See, for
example, the Civil Rights Act of 1964, P.L. 88-352 (prohibiting racial and gender discrimina-
tion in private employment and racial discrimination in private hotels, restaurants and thea-
ters), and the federal Housing and Urban Development Act of 1968, P.L. 90-448 (prohibiting
race and gender discrimination in the sale or rental of private housing). The power of Congress
to enact such legislation is ordinarily found in the federal power to regulate matters that affect
interstate commerce. See, e.g., Katzenbach v. McClung, 379 U.S. 294 (1964). Where racial
discrimination is involved, such legislation may also rest upon Congress’ explicit power to
“enforce” the prohibitions of the Thirteenth Amendment, the theory being that private racial
discrimination, while not constituting unconstitutional slavery as such, is nevertheless a
“badge or incident” of slavery remediable by federal legislation. See Jones v. AlfredH. Mayer
Co., cited immediately above. U.S. states may (like the Canadian provinces) also choose to
enact legislation protecting basic civil rights from private interference (so long as that legisla-
tion does not conflict with valid federal legislation on the same subject).
43See, e.g., Monroe v. Pape, 365 U.S. 167 (1961).
REVUE DE DROIT DE McGILL
[Vol. 28
officials, 44 or perhaps even when they are encouraged or required by the
government to take actions that the government itself could not constitutional-
ly undertake.4
1
Most significantly, action in the United States that is completely non-
governmental in the formal sense –
for example, the decisions or activities of
a private company or corporation – may nevertheless be treated as “gov-
ernmental” action if the private entity is deemed to be performing a peculiarly
“public” function, or if the state is sufficiently “involved” with, or has a
sufficient nexus to, the private behavior. A privately owned “company town”
was held by the U.S. Supreme Court to have engaged in constitutionally
prohibited “governmental” action when it decided to exclude religious
evangelists from the town,46 and a privately owned restaurant that leased
space in a state owned parking garage was held by the Court to have engaged
in constitutionally prohibited racial discrimination when it pursued its own
policy of refusing to serve black customers.47 In what is perhaps the U.S.
Supreme Court’s most famous case in this area, it held that a state court could
not constitutionally enforce a private racially restrictive land covenant against
a black home buyer who had arranged to purchase property subject to the
covenant. The Court decided that, although “the [private] restrictive agree-
ments standing alone cannot be regarded as violative of any rights guaranteed
to petitioners by the Fourteenth Amendment”, the State nevertheless violated
the equal protection clause by granting judicial enforcement of the restrictive
agreements.48
The governmental action doctrine has its limits, however difficult it may
be to locate them in particular cases. It has always been clear, for example,
that private conduct does not become governmental simply because a state
might have prohibited the behavior in question, but has chosen not to do so. It
has also been established for many years that privately owned inns, res-
taurants or public conveyances are not governmental merely because of their
“See, e.g., United States v. Guest, supra, note 19.
45See, e.g., Reitman v. Mulkey, 387 U.S. 369 (1967).
“See, e.g., Marsh v. Alabama, 326 U.S. 501 (1946).
4’Burton v. Wilmington Parking Authority, 365 U.S. 725 (1961).
“Shelley v. Kraemer, 334 U.S. 1, 13 (1948). There was no difficulty in finding state
“action” in Shelley; such action was clearly present in the state court’s enforcement of the
private restrictive covenant. The discriminatory decision, however, had been a purely private
one. The precise contours of the Shelley decision have never been clarified adequately. The
Supreme Court, for example, has not held that all state enforcement of private discriminatory
decisions amounts to unconstitutional governmental action. See, e.g., Bell v. Maryland, 378
U.S. 226 (1964) (where the majority of the Court declined to apply Shelley where blacks were
prosecuted for trespass for a “sit-in” at a private restaurant that refused them service because of
their race). See also Evans v. Abney, 396 U.S. 435 (1970).
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CANADIAN CHARTER AND U.S. BILL OF RIGHTS
traditionally public character.49 The same is undoubtedly true generally of
large private corporations, despite their possession of a state corporate charter
and their subjection to a significant degree of state regulation. Moreover, in
recent years, the Supreme Court has appeared to limit the scope of the
governmental action doctrine (when compared with the decisions described in
the preceding paragraph) by holding, among other things, that the public
areas of large, privately owned shopping centers are not to be treated like the
streets of company towns; 0 that the actions of a privately owned electric
utility company licensed by the state and enjoying a state conferred monopoly
are not governmental action;5 and that a private nursing home’s decision to
discharge public assistance patients is not governmental action, even though
the home is regulated extensively by the state, and receives most of its
revenue through federal and state assistance programs.52
To what extent will a governmental action doctrine apply under the
Canadian Charter? Are the rights and freedoms set out in the Charter
applicable against all interferences, governmental or private, or only to
“governmental” behavior? If governmental action is required, will Canadian
courts employ a relatively formal approach in determining whether activities
are governmental or private, or will they (as the U.S. courts have done) be
willing to characterize some formally private action as “governmental” be-
cause of its public character or its close relationship to governmental policies
or decisions?
The application of most Charter provisions appears to be textually
limited to governmental processes. That observation seems true, for example,
of the voting rights granted by the Charter. Those rights apply only in
elections “of members of the House of Commons or of a legislative
assembly”53 –
not in elections for corporate boards or trade union offices.
The official languages obligations of the Charter I also seem limited to
governmental proceedings and services. English and French, for example,
are the official languages “in all institutions of the Parliament and government
of Canada”, in “the legislature and government of New Brunswick”, and in
the provision of services by those governments. A governmental limitation is
also explicit in some of the Charter’s specific provisions regarding the rights
19Civil Rights Cases, supra, note 41.
‘”Hudgens v. National Labor Relations Board, 424 U.S. 507 (1976).
5Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).
52Blum v. Yaretsky, 102 S. Ct 2777 (1982). See also Rendell-Baker v. Kohn, 102 S. Ct 2764
(1982) (employment decisions of a private school, licensed and regulated by the state and
deriving income primarily from governmental sources, are not “governmental” action).
53 Charter, s. 3.
‘4Charter, ss 16 to 20.
McGILL LAW JOURNAL
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of defendants in criminal proceedings; these sections apply to persons
“charged with an offence”, “tried”, “arrested”, and “imprisoned”.” The
Charter’s equality rights provision also may be directed exclusively toward
governmental discriminations in view of its guarantees of equality “before
and under the law” and of “the equal protection and equal benefit of the
law”. 56
Although all of these provisions seem to be focused upon governmental
behavior, it is probable (as in the U.S.) that their application will not be
restricted to limiting only formal legislative enactments; decisions and be-
havior of governmental boards and agencies and official decisions of indi-
vidual officers and government employees should likely be covered as well.
Thus, an individual police officer would violate the Charter in imprisoning a
person arbitrarily, or in failing to inform a defendant of his or her rights after
arrest, even though the officer might be required to do otherwise by applicable
legislation or official policy. Even where, as in the equality rights provision,
the Charter’s guarantees relate to “the law”, that term should probably be
taken in its broad sense, that is, as referring to all official discriminations,
whether or not they are legislatively mandated.57 It also seems plausible that
these Charter sections with express governmental action limitations will be
deemed applicable to behavior that, while purely private in its origin, would
nevertheless tend directly to defeat a Charter right. Thus, although the
Charter’s right to vote applies only to parliamentary and legislative elections,
a private citizen who seeks forcibly to prevent another person from voting in
such an election might well be deemed to act in violation of the Charter,” as
might a private company that discouraged its employees from voting by
docking their pay. 59 A private citizen who conspires with a police officer to
effect an arbitrary arrest might’also be covered by the Charter. Whether these
Charter provisions ultimately will embrace anything resembling the full
sweep of the U.S. governmental action doctrine –
so that private behavior
will sometimes be treated as “governmental” merely because of a strong
governmental nexus –
seems, for now, to be a matter for speculation.
What of provisions of the Charter that, unlike the voting and equality
provisions, do not contain express government action limitations? In some
cases, such limitations are strongly implied by the context. Unreasonable
55See Charter, ss 9 to 11, 13 and 14.
-‘Charter, s. 15 [emphasis added].
“It seems relevant here that the affirmative action provision of subs. 15(2) authorizes any
“law, program or activity” designed to remedy disadvantages (not just any formal legislative
decision), and that s. 32 makes the Charter applicable to the legislatures “and government[s]”
of Canada and the provinces [emphasis added].
58In the U.S., see Brever v. Hoxie School District No. 46, 238 F. 2d 91 (8th Cir. 1956).
591n the U.S. context, cf. Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421 (1952).
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CANADIAN CHARTER AND U.S. BILL OF RIGHTS
“search[es] or seizure[s]” under s. 8, for example, would appear to be
intended to refer to the actions of law enforcement officials. Those depriva-
tions of life, liberty and security of the person required by s. 7 to conform with
“the principles of fundamental justice” also seem likely to be governmental
deprivations, both because “fundamental justice” would not be terminology
ordinarily applied to private behavior, and because s. 7 is the first of a series of
“Legal Rights” provisions that, in their procedural sense at least, seem clearly
to be addressed to criminal proceedings instituted by the government. A
governmental action limitation inherent in the Charter’s mobility rights
provision 10 seems somewhat more questionable, but nevertheless plausible.
Rights of entry and exit from a country, the establishment of residency status
and the right “to pursue the gaining of a livelihood” (the rights recognized in s.
6) are matters normally dealt with exclusively by government.6′
The Charter section that appears most likely (unlike U.S. constitutional
provisions) to be held applicable to private as well as governmental behavior
is s. 2, which protects the freedoms of “conscience”, “religion”, “thought”,
“belief”, “opinion”, “expression”, “peaceful assembly”, and “association”.
Does a private citizen or group act in violation of the Charter in forcibly
disrupting a peaceful political assembly? Does a private employer violate the
Charter in discharging an employee because of the employee’s membership
in a political party or the employee’s religious beliefs or practices? The use of
the word “freedoms” to describe these fundamental interests seem somewhat
less suggestive of a governmental action requirement than does the use of the
word “right” 62 in the Charter’s mobility and legal rights provisions. Never-
theless, a “freedom”, like a “right”, can sensibly be seen as describing an
entitlement applicable only against official interference. That, for example, is
certainly the way the word is used in the U.S. First Amendment, which
prohibits Congress from abridging the “freedom” of speech as well as the
“right” of peaceable assembly.
In determining whether s. 2 of the Charter (or any other section of the
Charter that lacks a built-in governmental action limitation) applies to private
s. 6.
60Charter,
61 Relevant here also may be the fact that the limitations on mobility rights contained in subss
(3) and (4) of s. 6 authorize non-discriminatory “laws or practices of general application in
force in a province”, “laws providing for reasonable residency requirements”, and “law[s],
program[s], or activit[ies]” designed to ameliorate social or economic disadvantages within a
province. In so far as these exceptions relate only to governmental programs, they suggest a
similar application for the rights involved.
61But cf. Jones v. Alfred H. Mayer Co., supra, note 42, 421, holding that U.S. federal
legislation giving all citizens “the same right” as white citizens to buy real property appears
“[o]n its face … to prohibit all discrimination against Negroes in the sale or rental of property
discrimination by private owners as well as discrimination by public [officials]” [emphasis
–
in original].
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as well as to governmental action, attention must be paid to the meaning of s.
32. That provision applies the Charter “to the Parliament and government of
Canada in respect of all matters within the authority of Parliament” and “to the
legislature and government of each province in respect of all matters within
the authority of the legislature of each province”. There seems to be consider-
able strength to the argument that s. 32 thus makes clear that all Charter
provisions, including s. 2, apply only to governmental action. However, the
word “only” does not appear in s. 32, and there is at least some doubt about
whether it should be implied. If the Charter applies “only” to the federal or
provincial governments, would that mean that it has no application in limiting
the behavior of local governmental units?63 Reading “only” into s. 32 might
also limit the Charter unduly by restricting its application to formal gov-
ernmental action (thus entirely rejecting the U.S. concept of private action
that is treated as governmental because of its strong governmental nexus).
Moreover, such a reading might also defeat the Charter’s application to the
actions or decisions of individual officials, such as police who engage in
arbitrary or unreasonable searches. Such actions will likely be contrary to
statute or official policy and thus difficult to characterize as actions of the
“legislature” or “government”. Section 32 might therefore perhaps best be
read, not as a strict and overriding governmental action requirement for all
Charter provisions, but merely as an allocation of governmental Charter
responsibility along the normal lines of Canadian federalism. If so, the
possibility exists that s. 2, unlike the equivalent provisions of the U.S.
Constitution, will indeed be applied to protect Canadians against purely
private interferences with the fundamental interests in individual thought,
worship, expression, and peaceful political activity.
C. When Are Rights Violated: Direct Interferences vs Practical Effects
The clearest situations in which constitutional rights are implicated are
those where government directly and purposefully prohibits the exercise of a
protected freedom, or openly engages in prohibited discrimination. Thus, if a
legislature in Canada were flatly to forbid the practice of a particular religion,
that would certainly involve rights under subs. 2(a) of the Charter. The same
would be true if provincial legislation purported to prohibit Canadians from
moving to a province (in apparent violation of subs. 6(2)), or members of an
ethnic group from being eligible for governmental employment (contrary to
63 In the U.S., “state” action under the Fourteenth Amendment includes the action of local
governmental units. See, e.g., Hunter v. Erikson, 393 U.S. 385 (1969), apparently on the
theory that such units are “arms” of the state. A similar result would seem possible under the
Charter, even if its application is limited to federal and provincial action.
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subs. 15(1)). As noted above, constitutional rights in the U.S. are also clearly
implicated when government agencies or officials, rather than legislatures,
adopt or employ policies prohibited to the government, and the same result
seems a likely one in Canada.64
What, however, of laws, policies or other official decisions that, on their
face, do not directly limit or infringe rights, that may not have been intended
to do so, but that nevertheless have that practical effect? Suppose, for
example, that traffic regulations enacted for safety reasons would prohibit
certain peaceful public assemblies; or that a school board enacts compulsory
school attendance rules that are in direct conflict with the religious principles
of a small sect with whose beliefs that board was unconcerned or unaware. Or
suppose that minimum one- or two-year durational residency requirements
are imposed as conditions of receiving public assistance, and that these
requirements, although enacted for reasons of administrative convenience or
fiscal integrity, nevertheless operate to deter inter-provincial migration of
poor persons who are receiving assistance; or that minimum height and
weight requirements for employment as police officers have the effect of
eliminating almost all women applicants for such jobs. 6 Are constitutionally
protected interests implicated here because of the impact of the rules in-
volved, or are rights to be deemed implicated only by more direct or deliberate
invasions?
In the United States, the answer that generally has been given to these
questions is that effects are constitutionally significant. Serious burdens on
free expression, freedom of religion, freedom of movement and other consti-
tutionally protected interests are ordinarily subjected to constitutional scru-
tiny whether or not they constitute outright direct prohibitions, and whether or
not the legislature, agency or official whose policy is involved is found to
have intended that a burden occur.6 Thus, in a well known case involving a
For a leading U.S. case establishing that the improper administration of laws valid on their
face can violate constitutional rights, see Yick Wo v. Hopkins, 118 U.S. 356, 373-4 (1886)
(administration of laundry licensing laws “with an evil eye and an unequal hand” violates the
equal protection clause).
6These examples are loosely based on the following U.S. cases: Cox v. Louisiana, 379
U.S. 536 (1965); Wisconsin v. Yoder, 406 U.S. 205 (1972); Shapiro v. Thompson, supra, note
19; and Dothard v. Rawlinson, 433 U.S. 321 (1977).
6Indeed, U.S. law has a general attitude that is hostile to the consideration of actual
legislative “motives” in connection with adjudicating the constitutionality of statutes. See,
e.g., United States v. O’Brien, 391 U.S. 367 (1968); and Palmer v. Thompson, 403 U.S. 217
(197 1). On the other hand, if the only legislative purpose that can be identified as supporting a
statute or policy is a constitutionally impermissible purpose (such as a purpose to suppress
dissent or religion or interstate migration), the statute will undoubtedly be invalidated. See,
e.g., Shapiro v. Thompson, ibid.
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federal prosecution for public draft-card burning, the Supreme Court applied
free speech principles to the application of a law that prohibited the destruc-
tion or mutilation of draft cards, even though it was clear to the Court that the
law plainly did not abridge free speech on its face and although the Court, in
addition, declined expressly to inquire into whether or not the “purpose” of
Congress was to suppress freedom of speech.6 7 Similarly, in the area of
freedom of religion, the U.S. Supreme Court has struck down a state unem-
ployment compensation law that required applicants to be available for work
on Saturday. It held that an impermissible burden was thus imposed upon the
religion rights of a Seventh-day Adventist (whose Sabbath was Saturday)
because the law forced the plaintiff “to choose between following the precepts
of her religion and forfeiting benefits, on the one hand, and abandoning one of
the precepts of her religion in order to accept work, on the other hand”.’
Minimum durational residency requirements as conditions for receiving wel-
fare benefits 69 or free medical care,70 or as qualifications for voting, 7′ have
similarly been invalidated as classifications that penalize the constitutionally
protected right of interstate migration.72
The one major area in United States law where unintended effects have
not been accorded constitutional significance has been under one branch of
the equal protection clause. Laws or official practices that have a dispro-
portionately negative impact upon minorities or women are not currently
treated by the U.S. Supreme Court as instances of racial or gender discrimina-
tion unless found to be “purposeful” in design. The U.S. Supreme Court has,
for example, refused to recognize constitutionally cognizable racial discrim-
ination in the use of a qualifying test for police officers that excluded four
times as many black as white applicants because there was no showing by the
plaintiff of “the necessary discriminatory racial purpose”.” And the Court has
similarly declined to find gender discrimination in a strict veterans’ prefer-
ence system for state employment, even though it was clear, because of
discrimination in selecting members of the armed forces, that less than two
67 United States v. O’Brien, ibid.
‘Sherbert v. Verner, 374 U.S. 398, 404 (1963). See also Wisconsin v. Yoder, supra, note
65, striking down the application of a state compulsory school attendance law to Amish
children whose parents objected, on religious grounds, to formal public education beyond the
eighth grade.
‘Shapiro v. Thompson, supra, note 19.
“0Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974).
71Dunn v. Blumstein, 405 U.S. 330 (1972).
7 Note that these cases find constitutional interests implicated whether the burden or penalty
on the individual is a directly coercive one through criminal sanctions (as in the draft-card
burning case), or occurs through the withdrawal of governmentally conferred privileges or
benefits (as in the case of the unemployed Sabbatarian).
73Washington v. Davis, 426 U.S. 229, 241 (1976).
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per cent of veterans eligible for the preference would be women.74 Perhaps the
most well known U.S. application of this purpose requirement in the equal
protection area lies in the area of so-called “de facto” school segregation.
Because of segregated housing patterns, the enforcement of neighborhood
school policies in many large U.S. cities results in public schools that are
themselves substantially racially segregated. This segregation is currently
held to raise no constitutional issue unless school districting laws or policies
are found, as a fact, to have been based on conscious segregative motives. 75
The Canadian Charter appears to contain no explicit directives about
whether its rights and freedoms may be deemed to be violated by burdens and
effects, in and of themselves, or only by direct or purposeful prohibitions and
restrictions. The textual indications that exist, however, seem to favor atten-
tion to such effects. Thus, the mobility rights provision of s. 6 is explicitly
made subject to exceptions for non-discriminatory laws of general application
and for reasonable residency requirements.76 Such exceptions would be un-
necessary if mobility rights could only be asserted against direct or purposeful
prohibitions upon travel and migration. The question of the relevance of
effects, as the foregoing description of the U.S. cases should indicate, is a
very important one for the ultimate scope of individual rights in Canada. A
constitution that ignores effects may leave many vital individual interests
either entirely unprotected, or at the mercy of subjective and difficult judicial
conclusions regarding the motives of legislatures and officials. On the other
hand, a constitution that pays attention to effects subjects a significantly
broader range of legislation and official policies to constitutional scrutiny
than is the case if constitutional protections apply only to direct and purpose-
ful prohibitions. Such scrutiny requires courts to strike a balance between
legitimate governmental policies and the fundamental individual interests
they may inevitably affect. When striking this balance, courts often become
vulnerable to criticism for seeming to second-guess legislative judgments
about the best means for effecting proper governmental objectives. 77
“Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 280 (1979). The
Court held that the gender discrimination was not purposeful because it was a “preference for
veterans of either sex over nonveterans of either sex”, not a preference for men over women, as
such.
71 See, e.g., Keyes v. School District No. 1,413 U.S. 189 (1973). Proof of such a purpose,
however, can be based in some settings on circumstantial as well as direct evidence. See,
generally, Village of Arlington Heights v. Metropolitan Housing Development Corp., 429
U.S. 252 (1977).
76Charter, paras 6 (3)(a) and 6(3)(b).
“The standards of review that courts may use in making these adjustments will be
considered in a subsequent article.
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II.
Specific Charter Rights and their U.S. Counterparts
It would be impossible within the confines of this article to attempt a
comprehensive comparative treatment of the potential scope of all, or even
most, of the substantive provisions of the Canadian Charter that have coun-
terparts in the U.S. system. What follows is a set of observations, from a U.S.
perspective, about some specific features of the Charter’s catalog of rights
that seem especially interesting or important in light of the U.S. experience
with similar rights.
A.
Legal Rights
Sections 7 to 14 of the Charter deal primarily with the rights of defen-
dants in criminal proceedings. As is true in the original U.S. Bill of Rights,
there appear to be both an overall requirement of fair procedure (the second
clause of s. 7 providing that “life, liberty and security of the person” not be
deprived “except in accordance with the principles of fundamental justice”),
as well as a number of detailed provisions. These concern, among other
things, arrests, searches, bail, fight to counsel, notice of charges, the pre-
sumption of innocence, speedy trials, double jeopardy, the right to be free
from compelled self-incrimination, the right to jury trial, and the right to be
free from cruel and unusual punishments. 78 The overall requirement is prob-
ably intended as a general fair trial guarantee that will supplement the specific
requirements that follow –
as a prohibition, that is, upon aspects of procedur-
al unfairness that may not be explicitly covered by the specific provisions. In
the United States, unfair line-ups or other pre-trial identification procedures
have been held to violate such a general due process guarantee,” as have trials
conducted in a “circus” atmosphere,80 prejudicial pre-trial publicity 11 and
prejudicial prosecutorial behavior at trial.82 These and related practices may
similarly be held to constitute failures to adhere to principles of “fundamental
justice” under the Charter.83
7 The U.S. Bill of Rights similarly has a general Fifth Amendment “due process” require-
ment (“nor shall any person.., be deprived of life, liberty, or property, without due process of
law”) supplemented by specific provisions in the Fourth, Fifth and Sixth Amendments.
79See Stovall v. Denno, 388 U.S. 293 (1967).
‘OSee Sheppard v. Maxvell, 384 U.S. 333 (1966).
8See Irvin v. Dowd, 366 U.S. 717 (1961).
“See Mooney v. Holohan, 294 U.S. 103 (1935).
11 The use of the words “security of the person” (rather than “property”) to describe one of the
deprivations covered by s. 7 raises the possibility that a general requirement of trial fairness
might not apply under the Charter to criminal proceedings where the only penalty is a monetary
fine or a forfeiture of property. This would be an unusual result, given the fact that the specific
requirements of s. 11 apply, for example, to “[any person charged with an offense”, whatever
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CANADIAN CHARTER AND U.S. BILL OF RIGHTS
In connection with its requirement that arrests and searches be
“reasonable”, 84 the U.S. Fourth Amendment includes an express requirement
that warrants be specific in nature,85 and be based upon “probable cause”.”
The United States Supreme Court has held that such warrants are ordinarily
required by the Constitution for searches of homes and offices’ (except
where “exigent” circumstances are present or the search is a narrow one
incident to a lawful arrest within the home), 8 but that warrants are not
required for arrests in streets or public places. 9 Even where warrants are not a
constitutional necessity, the basic “probable cause” standard applies. 90 A
great deal of case law exists in the U.S. elaborating upon the meaning of this
probable cause requirement in various specific contexts, such as the use of
police informants.”
By omitting explicit warrant and probable cause requirements from the
text of the Charter in favor of general proscriptions of “unreasonableness”
and “arbitrariness”, the framers of the Charter may have intended to forego
the elaboration of specific constitutional rules on these subjects, and to use
instead an approach under which “reasonableness” is to be determined on a
case-by-case basis in light of all the relevant circumstances. Such an approach
might have the merit of avoiding rules that may seem, at times, to be
the penalty. Perhaps property interests will come to be recognized as part of the “security of the
person”, a term that can possibly be read as including at least some traditional property rights.
See infra, text following notes 100 and 101. Interests in an individual’s reputation or good
name that may be affected by criminal law enforcement can also perhaps be included within the
term “security of the person”; alternatively, they may be an aspect of “liberty”. But see the U.S.
Supreme Court’s extremely questionable analysis of such issues in Paul v. Davis, 424 U.S. 693
(1976).
“U.S. Constitution, Amendment IV. Although the U.S. Fourth Amendment refers to
“searches and seizures”, and not specifically to “arrests”, “detentions”, or “imprisonments” (as
do Charter ss 9 and 10), such interferences are treated in the U.S. as “seizures” of the person.
See the last phrase of the Fourth Amendment (“the persons or things to be seized”); Beck v.
Ohio, 379 U.S. 89 (1964); and Terry v. Ohio, 392 U.S. 1 (1968).
“Warrants must “particularly [describe] the place to be searched and the persons or things to
be seized”.
“Police assertions that probable cause exists must be “supported by oath or affirmation”.
7See Payton v. New York, 445 U.S. 573 (1980).
“See Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294 (1967); and Chimel v.
California, 395 U.S. 752 (1969).
9See, e.g., United States v. Watson, 423 U.S. 411 (1976). Warrants are, however,
ordinarily required for arrests within the home. See Payton v. New York, supra, note 87.
10 Wong Sun v. United States, 371 U.S. 471 (1963).
“See, e.g., Aguilarv. Texas, 378 U.S. 108 (1964); andSpinelli v. United States, 393 U.S.
410 (1969). See also UnitedStates v. Ventresca, 380 U.S. 102(1965). The Supreme Court has
recently diluted probable cause requirements in the police-informant context. Illinois v. Gates,
103 S. Ct (1983) (forthcoming).
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excessively technical and mechanical in their specific applications (this is one
of the criticisms often directed against U.S. law in this area) 92 but it might, at
the same time, detract significantly from the Charter’s possible role as a
meaningful restraint upon police behavior. Police, that is, are quite likely to
deem their conduct in specific cases to be reasonable in the circumstances,
whereas they may well adjust that behavior to conform to relatively specific
rules elaborated previously by the judiciary, especially if those rules are
enforced by mechanisms such as the evidentiary “exclusionary” rule con-
tained in subs. 24(2) of the Charter.
The Charter’s provisions relating to police procedures after arrest
especially procedures regarding police interrogation of suspects –
are of
interest to U.S. lawyers in light of the substantial attention that has been paid
to these matters in recent years by U.S. courts. In Miranda v. Arizona,” the
United States Supreme Court held that police could not question or interrogate
a person after arrest without first telling the person arrested of various
applicable constitutional rights, including the rights to remain silent, to
consult with a lawyer, to have free counsel provided if the person arrested is
indigent, and to terminate an interrogation at any time for the purpose of
consulting with a lawyer or for any other reason. These Miranda “warnings”
are required, said the Court, to help make effective the general constitutional
prohibition against coercive police interrogation –
a prohibition that had
been recognized earlier by the Court under the due process clauses contained
in the Fifth and Fourteenth Amendments.94 Statements or confessions
obtained in violation of the Miranda rules are inadmissible as proof of guilt in
U.S. courts. 95
Charter s. 10 requires that arrested persons be informed promptly of the
reasons for arrest and of their right to “retain and instruct counsel”. No
explicit provision is made, however, for telling a defendant of any right to
remain silent, or to refuse to submit to or to terminate police interrogation, nor
is there an express provision for supplying lawyers to those unable to retain
counsel because of indigency. With regard to a possible right of silence under
the Charter in response to police interrogation, certain forms of coercive
interrogation (such as the use of physical torture or intense psychological
pressure) would, presumably, conflict with principles of “fundamental jus-
tice” under Charter s. 7. More generally, all coercive interrogation, or at least
the use of the fruits of such interrogation in a subsequent criminal trial, might
‘ See, for example, the unbelievably confusing line of recent U.S. cases dealing with the
requirements for stopping and searching automobiles and their contents. The most recent such
case is United States v. Ross, 102 S. Ct 2157 (1982).
93384 U.S. 436 (1966).
9’See Brown v. Mississippi, 297 U.S. 278 (1936).
5Miranda v. Arizona, supra, note 93, 476.
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also violate the Charter’s explicit right, set out in subs. 11(c), to be free from
compulsory self-incrimination. 96 If a right to be free of police coercion does
exist, Canadian courts, like the U.S. Supreme Court in Miranda, might well
deem communication to an arrested person of a right to remain silent to be a
necessary adjunct of that right.
The Charter’s failure to make express provision for affording free
counsel to indigents has implications for criminal trials themselves, as well as
for preliminary police interrogations and the pre-trial right to silence. Defen-
dants are given, in subs. 10(b), a Charter right “to retain and instruct
counsel”, a formulation that suggests the absence of an affirmative right to
have counsel retained by the government on an indigent’s behalf. The lan-
9Note, however, the relatively narrow formulation of subs. 11 (c). The self-incrimination
right conferred there is that of a person charged with an offence “not to be compelled to be a
witness in proceedings against that person in respect of the offense” [emphasis added]. Will
police interrogation qualify under the Charter as a “proceeding… in respect of the offence”?
Such “proceedings” might possibly be held to be only those of a more formal nature, i.e., the
trial itself, preliminary hearings, etc. Even if this construction were adopted, however, one
might argue that the use at trial of a statement previously compelled by police amounted to
compulsion “in” the trial.
The U.S. self-incrimination privilege is textually similar to that in the Charter. The U.S.
Fifth Amendment safeguards any person from being “compelled in any criminal case to be a
witness against himself”. It has, however, been clearly established in the U.S., despite this
verbal formulation, that the privilege may be asserted outside the confines of a criminal case-
in a legislative investigation, for example, or even in civil litigation – when the witness
reasonably fears that a compelled statement might subsequently be used to prove the witness’
guilt in a criminal case. See Murphy v. Waterfront Commission of New YorkHarbor, 378 U.S.
52 (1964).
On the other hand, the U.S. self-incrimination clause has been deemed applicable only to
compulsions of “testimonial” materials, and not to compulsion of “physical” evidence, even
when that evidence is forcibly taken from the defendant’s person or body. Thus, compulsory
fingerprinting is permitted, as are compelled blood and breath samples in drunk driving cases
(so long as ordinary search and seizure requirements, like the requirement of probable cause,
are satisfied). See Schmerber v. California, 384 U.S. 757 (1966). See, however, Rochin v.
California, 342 U.S. 165, 172 (1952) (forcible police “stomach-pumping” of swallowed
narcotics “shocks the conscience” and, hence, violates requirements of due process).
U.S. self-incrimination principles also prohibit prosecutors from commenting upon a
defendant’s failure to take the stand at trial, or from commenting upon a defendant’s invocation
of his or her right to silence in the face of police interrogation. See Griffin v. California, 380
U.S. 609 (1965); and Miranda v. Arizona, supra, note 93. Nor can such silence be made the
basis for criminal or similar sanctions. Since a defendant can, however, be compelled to give
blood or breath samples where probable cause exists for believing that relevant evidence would
be forthcoming, the U.S. Supreme Court has recently held that evidence of a defendant’s
refusal to give a breath sample in a drunk driving case can be used as evidence of guilt at trial.
See South Dakota v. Neville, 103 S. Ct (1983) (forthcoming). Presumably, a refusal to submit
to such a test could, alternatively, be directly penalized in the U.S. See Mackey v. Montrym,
443 U.S. 1 (1979).
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guage of the U.S. Sixth Amendment on this subject is somewhat broader than
that of the Charter. The Sixth Amendment gives a defendant the right “to
have the assistance of counsel for his defense”. Although it is unlikely that the
Amendment originally contemplated a requirement that free counsel be sup-
plied to indigents, and although the U.S. Supreme Court held originally that,
in general, it did not,97 the Court more recently has established that an indigent
defendant may not, in fact, be tried for a serious offense without counsel
being provided.98 If such a right is not found to be implicit in subs. 10(b) of the
Charter, it might alternatively be found in the “fair… hearing” requirement
of subs. 1 1(d), as a requirement of “fundamental justice” under s. 7 or perhaps
as a discrimination against the poor, potentially cognizable under Charter
s. 15.91
‘See Betts v. Brady, 316 U.S. 455 (1942).
9’See Gideon v. Wainwright, supra, note 31; and Argersinger v. Hamlin, 407 U.S. 25
(1972).
‘Some other potential differences between the Charter’s “legal rights” and the rights of
U.S. criminal defendants deserve brief mention. The Charter makes explicit that a defendant is
to be “presumed innocent until proven guilty” (subs. I 1(d)). This rule is not explicit in the U.S.
constitutional text, but is clearly recognized nonetheless. See In re Winship, 397 U.S. 358
(1970). In the U.S., the presumption of innocence translates into a requirement of proof of guilt
“beyond a reasonable doubt”. See In re Winship, at 363. Does the Charter make the same
standard a constitutional requirement in criminal cases? U.S. courts have not resolved clearly
the “reverse onus” question that has arisen in Canada, i.e., when, if ever, it is consistent with
the presumption of innocence to place the burden of proof regarding certain issues on the
defendant in a criminal case. The leading U.S. cases are Leland v. Oregon, 343 U.S. 790
(1952) (insanity defense); Mullaney v. Wilbur, 421 U.S. 684 (1975) (provocation in murder
prosecution); Patterson v. New York, 432 U.S. 197 (1977) (again, provocation); and Leary v.
United States, 395 U.S. 6 (1969) (rebuttable presumption arising from possession in narcotics
cases).
The Charter affords a right ofjury trial (except in the military) for offenses punishable by
imprisonment for five years or more (subs. I 1 (f)). A similarjury right applies in the U.S. for all
non-petty offenses and where the person sentenced may be imprisoned for more than six
months. See Baldwin v. New York, 399 U.S. 66 (1970). In the U.S., however, the jury need be
neither unanimous nor a twelve-person panel. See Apodaca v. Oregon, 406 U.S. 404 (1972);
and Williams v. Florida, 399 U.S. 78 (1970). The Charter does not address these questions
explicitly. Note that theApodaca and Williams decisions seem inconsistent with prior historical
understandings about the meaning of a “jury’ trial in the U.S.
The Charter’s expostfacto clause (subs. 11 (g)) seems less restrictive than U.S. law on the
same subject by permitting acts to be criminalized after the fact if they constituted offenses
under international law or “general principles recognized by the community of nations” at the
time of their commission. No such exceptions have, as yet, been clearly recognized in the U.S.
The Charter also seems to incorporate a somewhat different double-jeopardy provision than
that applicable under U.S. law, where prosecution appeals are not permitted after acquittal. See
United States v. Tateo, 377 U.S. 463 (1964). The Charter protects defendants only when
“finally acquitted” of the offense [emphasis added]. The Charter also does not include a right to
“presentment or indictment of a Grand Jury”. This U.S. Fifth Amendment right is one of the
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B.
Due Process in Civil Proceedings
The requirement of s. 7 of the Charter, that persons not be deprived of
life, liberty or security of the person except “in accordance with the principles
of fundamental justice”, seems intended primarily to require fair procedures
in criminal cases. Section 7, however, is not on its face limited in application
to such prosecutions. Does it also require fair procedures –
such as notice of
charges, the right to a hearing, a right to counsel, and findings based on
for civil deprivations? Do such procedural rights apply, for
evidence –
example, before a student is expelled from school for misconduct, before a
parent is deprived of custody of a child, before public assistance is terminated
for lack of eligibility, or before a government employee is discharged?
Procedural rights of this kind exist to a substantial extent in the United
States, where they are based upon the due process clauses of the Fifth and
Fourteenth Amendments (applicable to the federal government and the states,
respectively).” Unlike s. 7 of the Charter, however, the U.S. clauses apply
explicitly to deprivations of “property”, as well as to deprivations of “life”
and “liberty”; that property provision has been the apparent basis for many of
the U.S. judicial decisions in this area.’ 0′ Assuming that Charter s. 7 does,
indeed, apply in the non-criminal area, the scope of its procedural protections
few rights in the 1791 Bill of Rights that has not been incorporated into the due process clause of
the Fourteenth Amendment. It is, therefore, a constitutional right only in U.S. federal criminal
proceedings.
Finally, the Charter accords all witnesses who give incriminating evidence “in any
proceedings” immunity against the use of that evidence to incriminate the witness in subse-
quent proceedings (s. 13). Immunity seemingly applies whether the testimony is voluntary or
compelled. In the U.S., immunity is constitutionally necessary only if testimony is compelled;
not if it is given voluntarily. The immunity, moreover, need only be against the use of the
particular testimony or its fruits; “transactional” immunity is not required. See Kastigar v.
United States, 406 U.S. 441 (1972). As discussed supra, note 96, in the U.S., “any proceed-
ings” would include civil proceedings, legislative hearings, etc.; incriminating evidence may
not be compelled there without providing “use” immunity. Will the Charter’s automatic
immunity similarly be applicable to incriminating testimony given in non-criminal cases (i.e.,
do “any proceedings” include non-criminal proceedings), and will the Charter be limited to
“use” immunity, or will it immunize a witness against prosecutions for the transaction
regarding which he or she testified?
‘See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (termination of public assistance);
Perry v. Sinderman, 408 U.S. 593 (1972) (termination of public employment); and Coss v.
Lopez, 419 U.S. 565 (1975) (school suspension). See also Santosky v. Kramer, 102 S. Ct
(1982) (forthcoming) (termination of parental rights); and Wisconsin v. Constantineau, 400
U.S. 433 (1971) (hearing required before individual’s name is publicly posted as an alcoholic).
101 “Property” is defined under the U.S. due process clauses as including “legitimate claims
of entitlement” to government benefits under applicable statutes. See, e.g., Goldberg v. Kelly,
ibid.; and Board of Regents v. Roth, 408 U.S. 564 (1972).
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will depend primarily upon the breadth of meaning given to the Charter’s
concepts of “liberty” and “security of the person”.
Mental health commitment procedures would clearly seem to implicate
“liberty” interests; if so, they would be required to be fair under s. 7. “2 The
same would seem true of the revocation of parole or probation.’ The
termination of government employment, suspension from school or revoca-
tion of a license to practice a trade or profession might also be seen as liberty
interests, especially if the reasons given for such actions would make it
difficult or impossible for the individual involved to obtain other employment
or opportunities. 0
The individual interest in not being deprived of “security of the person”
without acceptable procedures seems capable of including, at a minimum,
interests such as being free from searches of the person in connection with
non-criminal proceedings (perhaps already covered specifically by Charters.
8), being free from government surveillance and wiretapping (also potentially
within the ambit of s. 8)105 and in being free from interferences such as
compulsory sterilization (an interest that might also be viewed as involving
individual “liberty”). ,o6 “Security of the person” may, however, be conceived
more broadly as including those interests necessary for personal “security”
because of their importance in maintaining an individual’s quality of life. If
so, terminations or denials of public assistance may well require some fair
process, as might terminations of existing government employment, license
revocations, school expulsions or suspensions (whatever the reasons for the
action), deprivations of parental rights, and even deprivations of essential
items of real and personal property such as an individual’s home, furniture or
clothing. The procedural requirements of “fundamental justice” may, of
course, vary according to the particular context. More procedural protection
might be required as the individual interest becomes more important, and as
the reasons for governmental action come to resemble those that commonly
underlie the imposition of criminal sanctions.0 7
12In the U.S., see Vitek v. Jones, 445 U.S. 480 (1980).
13In the U.S., see Morrisey v. Brewer, 408 U.S. 471 (1972).
101See Bishop v. Wood, 426 U.S. 341 (1976).
105In the U.S., wiretapping and other forms of non-trespassory electronic eavesdropping
were once held not to be “searches” within the meaning of the Fourth Amendment. See
Olmsteadv. UnitedStates, 277 U.S. 438 (1928). That decision was overruled in Katz v. United
States, 389 U.S. 347 (1967), and non-consensual wiretapping is now fully subject to Fourth
Amendment limitations. “Fundamental justice” may not require an adversary hearing prior to
the installation of a wiretap, but might require ajudicial warrant, a showing of probable cause,
a time limit on the eavesdropping, and ultimate notification to the individual that a tap has been
used.
“~See Skinner v. Oklahotha, 316 U.S. 535 (1942).
107 This “sliding-scale” approach is the one generally used in the U.S. See, e.g., Mathews v.
Eldridge, 424 U.S. 319 (1976).
1983]
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
C.
“Substantive” Due Process and the Right to “Privacy”
Most forms of governmental regulation involve limitations on the free-
dom of individuals and corporations to do as they like with themselves and
their property. This is true of highway speed limits, drug laws, abortion
regulations, minimum-wage requirements, industrial safety rules, ad infini-
tum. These laws may be completely fair in the procedural sense; prescribed
legislative procedures may have been followed scrupulously and judicial
enforcement mechanisms may incorporate the full panoply of procedural
rights and protections required by ss 7 to 14 of the Charter. Nevertheless,
such laws are sometimes thought to be substantively unreasonable –
that is to
restrict individual liberty without a sufficiently strong public justification for
so doing. Where the specific individual liberty interest involved is given
express constitutional recognition –
as is true, for example, with respect to
the interests in free expression, religion and mobility under the Charter –
that recognition undoubtedly provides a basis for examining the substantive
reasonableness of the regulation in light of the asserted governmental
justifications.” 8 Does the Charter, however, also piovide a basis for scrutiniz-
ing the reasonableness of impingements upon aspects of individual liberty
generally –
including aspects that are not the subject of specific Charter
protections?
In the United States, a concept of “substantive” due process has evolved
that, over the years, has been employed by courts to require varying degrees
of judicial scrutiny of the reasonableness of governmental limitations upon
aspects of individual liberty and property not protected specifically by express
constitutional protections. At one time, application of this doctrine was
especially active in relation to government regulations of business and com-
merce. It was used during the late nineteenth and early twentieth centuries, for
example, to strike down (as unreasonable interferences with liberty, property
or “freedom of contract”) ,09 laws prescribing maximum hours of employment
“‘Thus, Charter s. I indicates that Charter rights generally may only be infringed by
“reasonable” limits that can be “demonstrably justified”. The role and meaning of s. 1, a
subject at the heart of the consideration of the strength of Charter rights, will be treated in a
subsequent article.
’09 See Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897): “The liberty mentioned in… [the
Fourteenth Amendment] means not only the right of a citizen to be free from the mere physical
restraint of his person, as by incarceration, but the term is deemed to embrace the right of the
citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to
live and work where he will; to earn his livelihood by any lawful calling; to pursue any
livelihood or avocation, and for that purpose to enter into all contracts which may be proper,
necessary and essential to his carrying out to a successful conclusion the purposes above
mentioned.”
McGILL LAW JOURNAL
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or minimum wages, laws regulating collective bargaining rights, laws pre-
scribing commercial product standards, and laws conferring limited
monopolies.” The doctrine was also used from time to time to protect more
personal liberties; substantive due process principles were invoked, for exam-
ple, to strike down state laws requiring children to attend public, rather than
private or parochial schools,”‘ and prohibiting the teaching of foreign lan-
guages in public or private elementary schools.” 2
In the 1930s, the U.S. Supreme Court changed its attitude regarding the
application of substantive due process principles to the broad range of econo-
mic and social regulations enacted by state and federal legislatures during the
period of the Great Depression. It replaced its earlier approach with a test
under which legislation would be sustained whenever there “is an evil at hand
for correction, and..,
it might be thought that the particular legislative
measure was a rational way to correct it. The day is gone when this Court
uses the Due Process Clause… to strike down state laws, regulatory of
business and industrial conditions, because they may be unwise, improvi-
dent, or out of harmony with a particular school of thought.” “I The Court
announced that it would thereafter refuse to apply the doctrine of substantive
due process “to sit as a ‘superlegislature to weigh the wisdom of
legislation’ “.”‘ Many of the earlier decisions were overruled. “‘ The doctrine
of substantive due process was not entirely obliterated, however. Although
there is probably no Supreme Court case since 1940 that strikes down a
business regulation as “unreasonable” under the doctrine, the reasonableness
principle remains, at least in theory. From time to time, moreover, the Court
still engages in what appears to be more than a toothless version of rationality
scrlutiny of laws regulating activities that do not fall within any specific
constitutional protection.” 6
” See, e.g., Lochner v. New York, 198 U.S. 45 (1905); Coppage v. Kansas, 236 U.S. 1
(1915); Adkins v. Children’s Hospital of the District of Columbia, 261 U.S. 525 (1923);
Weaver v. Palmer Bros Co., 270 U.S. 402 (1926); and New State Ice Co. v. Liebmann, 285
U.S. 262 (1932).
“‘Pierce v. Society of Sisters, 268 U.S. 510 (1925).
“‘Meyer v. Nebraska, 262 U.S. 390 (1923).
“3 Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955) [emphasis added].
“‘Ferguson v. Skrupa, 372 U.S. 726, 731 (1963), quoting from Day-Bright Lighting, Inc.
v. Missouri, supra, note 59, 423.
“5 See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); and Olsen v. Nebraska,
313 U.S. 236 (1941).
1
6 See Paris Adult Theater I v. Slayton, 413 U.S. 49 (1973), where, after holding that
“obscene” speech was not expression protected by the First Amendment, the Court neverthe-
less satisfied itself, at 57, that “there are legitimate state interests at stake in stemming the tide
of commercialized obscenity” and, at 61, that “the legislature of Georgia could quite reason-
ably determine that… [a connection between antisocial behavior and obscene material] does or
might exist”.
19831
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
The doctrine of substantive due process has had a significant and impor-
tant revival in recent years in the United States in one particular area –
regulations and prohibitions characterized by the Supreme Court as invading
“fundamental” interests of personal “privacy”. This development began with
Griswold v. Connecticut,”7 a decision that struck down a state law prohibiting
contraceptive use by married persons. Although the Griswold opinion was
exquisitely unclear regarding the textual source of the constitutional right
involved, subsequent cases have recognized that source as the “liberty”
provision in the due process clauses, and have employed the revived right to
prohibit regulations upon contraceptive use by unmarried persons “I includ-
ing minors, ‘119 upon the rights to marry,'” to procreate 2 and to possess sexual
books and pictures in the home,’1 and upon the right of family members to
reside in the same household.’ The most controversial application of this
right, of course, has been to strike down laws prohibiting (or significantly
interfering with) abortions prior to fetal viability. 4 On the other hand, the
Court has refused to extend the privacy principle to protect consensual
homosexual behavior between adults, ‘ to establish a right to be free from hair
length regulations applicable to police officers, 26 to protect the desire of
parents to send children to racially exclusive private schools, 27 or to permit
groups of students to live together in residential areas (despite zoning regula-
tions prohibiting such “non-family” uses) .121
The text of the Canadian Charter appears to be much more hospitable
than the U.S. constitutional text to the idea of incorporating “substantive” due
“‘Supra, note 25.
“‘Eisenstadt v. Baird, 405 U.S. 438 (1972).
“‘Carey v. Population Services Int’l, 431 U.S. 678 (1977).
’21Loving v. Virginia, 388 U.S. 1 (1967); and Zablocki v. Redhail, 434 U.S. 374 (1978).
“I1 Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).
‘1Stanley v. Georgia, 394 U.S. 557 (1969).
‘Moore v. City of East Cleveland, 431 U.S. 494 (1977).
‘ Roe v. Wade, supra, note 25. See also Doe v. Bolton, 410 U.S. 179 (1973); Planned
Parenthood of Missouri v. Danforth, 428 U.S. 52 (1976); and Colautti v. Franklin, 439 U.S.
379 (1979). The Supreme Court reaffirmed theRoe abortion decision in 1983. City ofAkron v.
Akron Center for Reproduction Health, Inc., 103 S. Ct (1983) (forthcoming).
The U.S. Supreme Court has also used the privacy doctrine to suggest an area of
that is, that there are constitutional limits on the authority of
“informational” privacy –
government to gather and disseminate information about an individual’s protected “private”
behavior, such as the use of drugs to treat medical conditions, the obtaining of abortions, etc.
See Whalen v. Roe, supra, note 25. But see California Bankers Assn v. Shultz, 416 U.S. 21
(1974) (personal bank account records not protected).
‘5Doe v. Commonwealth’s Attorney, 425 U.S. 901 (1976), affig 403 F. Supp. 1199 (U.S.
Dist. Ct, E. Dist. Virginia).
‘ Kelley v. Johnson, 425 U.S. 238 (1976).
’27Runyon v. McCrary, 427 U.S. 160 (1976).
‘Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).
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[Vol. 28
process principles. The U.S. text thus forbids deprivations without due
“process” of law, whereas s. 7 of the Charter forbids deprivations not in
accordance with “principles of fundamental justice” –
a phrase that might
more plausibly be read to include ideas of substantive, as well as procedural,
justice. Section 7, moreover, confers a seemingly affirmative right to “liber-
ty” upon all persons –
again a formulation that might be used as the basis for
a rule requiring substantive rationality before that liberty can be restricted. 9
A major difficulty, however (a difficulty equally present in U.S. law), is
that the’ term “liberty”, in the absence of further constitutional definition,
seems equally applicable to the “liberty” to pay one’s employees the lowest
wage the market will allow (and to work them for the longest possible hours),
or to the “liberty” to engage in a trade or business despite restrictive licensing
and public convenience regulations, as to the liberty to use contraceptives or
to undergo an abortion. It is unlikely that Canadian courts will want to apply a
substantial level of constitutional scrutiny for reasonableness across the entire
range of economic, business and social regulations that affect all areas of
“liberty”. This hypothesis seems especially true because s. 1 of the Charter
appears to require a “demonstrable” justification for limits on all protected
rights. Such a level of required justification may seem unreasonably formid-
able when applied to all modern economic regulation, much of which is of an
experimental and somewhat speculative nature. If these predictions about
general approaches under the Charter prove accurate, the crucial question
will be whether Canadian courts, like the U.S. Supreme Court in recent years,
will seek to develop a separate concept of “fundamental” liberty –
liberty
deemed especially vital to individual well-being 130 – that, like the specifical-
ly protected Charter rights of expression, religion and mobility, can be
subjected to meaningful judicial protection, while other aspects of liberty
remain largely or completely unConstitutionalized.13 ‘
’29See supra, text accompanying notes 108 to 112.
3oIn holding that the abortion right was part of “fundamental” liberty in Roe v. Wade, supra,
note 25, the U.S. Supreme Court stressed the following factors as relevant considerations in
making this determination: that “medically diagnosable” harm might occur to a woman denied
an abortion; that an unwanted child could cause “a distressful life and future” for the woman;
that “psychological harm may be imminent”; that a family might be “unable, psychologically
or otherwise” to care for a child; and that, in some cases, denying the abortion right might create
the “difficulties and continuing stigma” of unwed motherhood. The Griswold decision, supra,
note 25, emphasized that marriage involved privacy interests “older than the Bill of Rights” and
“intimate to the degree of being sacred”, and that marriage “promotes a way of life”.
13 Some judges and commentators in the U.S. who have deemed the due process clause to be
an incorrect or inappropriate basis forprotecting certain fundamental liberties, such as personal
privacy, have argued that protection can be justified, instead, through the U.S. Ninth Amend-
ment. See the concurring opinion of Justices Goldberg, Brennan, and Chief Justice Warren in
Griswold v. Connecticut, ibid., 486. The U.S. Ninth Amendment provides that “the enumera-
tion in the Constitution of certain rights shall not be construed to deny or disparage others
1983]
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
D.
Equality Rights
Both the Charter and the U.S. Constitution contain textual provisions
dealing explicitly with equality rights. The U.S. provision (part of the Four-
teenth Amendment) is quite brief: “Nor shall any State 132J … deny to any
person within its jurisdiction the equal protection of the laws”. Charter s. 15
is more detailed:
Every individual is equal before and under the law and has the right to the equal protection
and equal benefit of the law without discrimination and, in particular, without discrimina-
tion based on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.”3
United States equal protection doctrine is awesomely complex. The
seemingly simple requirement that government not deny “equal protection”
of laws has evolved into a jurisprudence with three distinct branches, each
with its own separate focus, intricate rules and analytical approaches. The
retained by the people”. The Canadian Charter contains a similar provision in s. 26: “The
guarantee in this Charter of certain rights and freedoms shall not be construed as denying the
existence of any other rights or freedoms that exist in Canada.”
The prevailing U.S. view about the meaning of the Ninth Amendment is that it is not an
independent source of constitutional rights, but rather that it was added to the original Bill of
Rights to make explicit that that Bill did not abolish all the other existing rights of people in the
rights flowing, for example, from the common law or from state constitutions. Section
U.S. –
26 of the Charter seems at least equally susceptible to the same construction, i.e., that it was
included in the Charter in order to make clear that existing federal and provincial civil rights
legislation in Canada was not abolished by the Charter. If the Ninth Amendment or s. 26 were
recognized as independent sources of rights, there would, of course, be no explicit textual
guidance regarding the content of those rights, because neither constitutional provision seeks,
in the least, to identify the nature of the rights that are retained. The concept of personal
“liberty” under the U.S. due process provisions and Charter s. 7- assuming that a substantive
provides at least some guide to the nature of
content is or can be attributed to those clauses –
the rights involved in cases like the U.S. privacy decisions. The scope for judicial “interpreta-
tion” is, in all events, enormous. Indeed, substantive due process (when that was a practically
significant doctrine in the U.S.) and the newer due process-privacy doctrine have, more than
any other U.S. constitutional principles, drawn criticism on the ground that they constitute
illegitimate judicial “legislation” regarding policy issues that ought properly to be left to more
democratic decision-making.
a process of “reverse incorporation”, this provision is also applicable to the federal
02By
government. See supra, note 19.
“‘The Charter also contains a provision explicitly authorizing affirmative action programs
(subs. 15(2)). No similar provision appears in the U.S. text, but affirmative action programs
have been the subject of constitutional decisions in recent years. See infra, text accompanying
notes 167 and 168.
McGILL LAW JOURNAL
[Vol. 28
branch of the clause that flows most directly from the Civil War origins of the
Fourteenth Amendment is what U.S. courts now refer to as the “suspect
classification” branch of equal protection law. Originally, this branch was
applied to hostile discriminations toward blacks, for whose protection the
amendment was primarily designed.’
It has come to apply to all racial
classifications,
to classifications based on national origin 36 and to most
classifications based on alienage. 3 7 It applies, in a somewhat milder form, to
gender-based classifications 131 and probably also to classifications relating to
illegitimacy.’39 Although the Supreme Court has never directly faced the
questions, express discriminations on the basis of wealth or poverty would
probably also be treated as at least somewhat suspect, 40 as might some
discriminations against the physically or mentally handicapped. 4 Discrim-
inations on grounds of religion are probably also covered, but the result would
more likely be based upon the religion clauses of the First Amendment. 42 On
the other hand, the Court has ruled that age classifications or discriminations,
whether against the young or the old, are not “suspect”. 143
When a classification is “suspect” in U.S. law, the courts apply a degree
of “strict” judicial scrutiny requiring that the classification be shown to be
necessary to serve legitimate and sufficiently substantial governmental
interests. ‘” The vast majority of “suspect” classifications do not pass this
‘”Strauder v. West Virginia, 100 U.S. 303 (1880).
,”‘SeeLoving v. Virginia, supra, note 120; and Brown v. Board of Education, 347 U.S. 483
(1954).
“6Korematsu v. United States, 323 U.S. 214 (1944); Yick Wo v. Hopkins, supra, note 64;
and Hernandez v. Texas, 347 U.S. 475 (1954).
‘See, e.g.,In re Griffiths, 413 U.S. 717 (1973). But seeAmbach v. Norvick, 441 U.S. 68
(1979) (alienage classifications related to governmental functions not “suspect”).
“‘See Craig v. Boren, 429 U.S. 190 (1976).
’39See Lalli v. Lalli, 439 U.S. 259 (1978); and Levy v. Louisiana, 391 U.S. 68 (1968).
“See, e.g., Harper v. Virginia Board of Elections, 383 U.S. 663, 668 (1966): “Lines
drawn on the basis of wealth or property, like those of race…, are traditionally disfavored”.
See also Griffin v. Illinois, 351 U.S. 12, 17 (1956): “In criminal trials a State can no more
discriminate on account of poverty than on account of religion, race, or color.” A direct
discrimination on the basis of poverty should be distinguished, for.these purposes, from a
discriminatory impact upon the poor caused by inability to pay for some government service.
Discriminatory effects, as noted infra, text accompanying notes 151 to 153, are not within the
U.S. “suspect classification” doctrine. Thus, while poor people undoubtedly could not be
deliberately segregated by law in public schools from more affluent people, a neighborhood
school policy that achieves the same result would probably be upheld.
‘See Schiveiker v. Wilson, 450 U.S. 221 (1981).
‘4zSee Everson v. Board of Education, supra, note 19.
‘See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976). See also
Oregon v. Mitchell, 400 U.S. 112 (1970).
I” Where the classification discriminates against a racial or similar minority, only a “press-
ing public necessity” will suffice. See Korematsu v. United States, supra, note 136. “Equal”
19831
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
849
test. “’45 It is fair to say, therefore, that such classifications are, with the
exception of those contained in some affirmative action programs, at least
presumptively invalid; they may theoretically be saved by a showing of
important governmental need. Classifications adopted for the purpose of
harming minorities, however, as well as classifications that reflect the view
that the minority group is inferior or that are based upon stereotypical attitudes
toward traditional victims of societal discrimination, are probably unconstitu-
tional in all situations.”, Race- or gender-conscious affirmative action prog-
rams, on the other hand, although receiving significant judicial scrutiny, will
probably be upheld if the program is tailored carefully to suit one or more of a
number of legitimate goals related to reducing the impact of past or present
discrimination.
47
The suspect classification branch of the U.S. equal protection clause
was, for many years, restricted severely in application by the doctrine that
laws requiring “separate” but equal racial segregation did not constitute
unequal treatment cognizable under the clause. 48 De jure racial segregation
thus remained a feature of life in some areas of the U.S. –
including the
nation’s capital –
until the Supreme Court’s 1954 decision in Brown v.
Board of Education.49 Brown reversed the separate-but-equal doctrine as it
applied to public education, and subsequent cases established that legally
required racial segregation is presumptively unconstitutional in all areas of
U.S. life.’ Recently, however, the Supreme Court has imposed a different
racial classifications may only need to be necessary to serve “legitimate” public needs. See
Loving v. Virginia, supra, note 120. The milder test for gender and some other classifications
requires a “substantial” relationship to an “important” governmental interest. See Craig v.
Boren, supra, note 138.
115But see, Rostker v. Goldberg, 453 U.S. 57 (1981) (male-only draft registration is
constitutional); and Korematsu v. United States, ibid. (the exclusion of citizens of Japanese
origin from West Coast areas during the Second World War held constitutional).
‘6See, e.g., Mississippi University for Women v. Hogan, 102 S. Ct 3331 (1982).
47See University of California Regents v. Bakke, 438 U.S. 265 (1978); Fullilove v.
Klutznick, 448 U.S. 448 (1980).
“See Plessy v. Ferguson, 163 U.S. 537, 551 (1896): “[Ihe underlying fallacy of the
plaintiff’s argument… [is] the assumption that the enforced separation of the two races stamps
the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in
the act [requiring racial segregation on railways], but solely because the colored race chooses to
put that construction on it.”
‘ 4 Supra, note 135. Brown held that “[s]eparate educational facilities are inherently un-
equal”.
Im See, e.g., Johnson v. Virginia, 373 U.S. 61 (1963). Gender segregation has not been
treated as strictly. See Vorchheimer v. School District of Philadelphia, 430 U.S. 703 (1977)
(affirming, by an equally divided Court and without opinion, a decision upholding Phil-
adelphia’s maintenance of two sex-segregated academically selective high schools). But, more
recently, see Mississippi University for Women v. Hogan, supra, note 146 (striking down a
women’s-only nursing school in a State that also maintained sexually integrated nursing
schools).
REVUE DE DROIT DE McGILL
[Vol. 28
limitation upon the suspect classification doctrine. The Court has held that the
doctrine deals only with “purposeful” classifications, and not with uninten-
tional discriminatory effects upon minority groups that occur as the result of
laws or practices that are racially neutral on their face.’ Thus, so-called de
facto racial segregation –
segregation caused by racially “neutral” school
assignment practices (such as neighborhood schools) or by assignment by
academic “aptitude”, remains constitutional in the U.S., as does the use of
qualifying exams for employment or admission to state schools and universi-
ties even when those exams reject a grossly disproportionate number of black
applicants. 2 Courts can strike down such practices under the U.S. Constitu-
tion only if they find that they were adopted for racially discriminatory
purposes. ‘I
The second branch of the U.S. equal protection clause is one that
requires all governmentally imposed classifications, whether “suspect” or
not, to be “reasonable”. Im This doctrine has had a history similar to the rise
and fall of the substantive rationality doctrine that has been developed under
the due process clauses.’5 Rationality arguments under the equal protection
clause, however, are today taken somewhat more seriously than due process
rationality contentions, and a few modem cases strike down classifications
for lack of rationality, without any overt finding of “suspectness” or
announced violation of any other constitutional doctrine.’56
“I Washington v. Davis, supra, note 73.
’52The U.S. Supreme Court has even held, in Geduldig v. Aiello, 417 U.S. 484,496, fn. 20
(1974), that the exclusion of pregnancy from a state medical benefits plan is not a sex-based
classification because, “[w]hile it is true that only women can become pregnant… pregnancy
is an objectively identifiable physical condition”. The Court concluded, at 496-7: “There is no
risk from which men are protected and women are not”. The Court has also held that a strict
veteran’s preference in state employment decisions does not constitute a gender classification,
despite the fact that less than twoper cent of veterans were women. PersonnelAdministrator of
Massachusetts v. Feeney, supra, note 74.
“I See, e.g., Village ofArlington Heights v. Metropolitan Housing Development Corp., 429
U.S. 252 (1977). However, modem federal civil rights statutes in the U.S., such as statutes
dealing with racial discrimination in private employment, are commonly interpreted as ap-
plying to discriminatory effects as well as to discriminatory purposes. See, e.g., Griggs v.
Duke Power Co., 401 U.S. 424 (1971).
‘-‘Thus, classifications “must always rest upon some difference which bears a reasonable
and just relation to the act in respect to which the classification is proposed, and can never be
made arbitrarily and without any such basis”. Gulf, Colorado & Santa F Ry Co. v. Ellis, 165
U.S. 150 (1897).
’55See supra, text accompanying notes 109 to 128.
16See, e.g., Morey v. Doud, 354 U.S. 457 (1957) (exemption of American Express
Company from regulatory scheme). This case was, however, overruled in City of New Orleans
v. Dukes, 427 U.S. 297 (1976) (“grandfathering” exemption to business regulation upheld).
See also Baxstrom v. Herold, 383 U.S. 107 (1966); United States Dep’t of Agriculture v.
Moreno, 413 U.S. 528 (1973); Reed v. Reed, 404 U.S. 71 (1971); United States Dep’t of
1983]
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
The third branch of United States equal protection doctrine is the most
recent in origin. It might be termed a doctrine of “substantive” equal protec-
tion, and it does, indeed, bear a relationship to the recently evolved U.S.
doctrine protecting “fundamental” liberty under the concept of substantive
due process. 57 Inequalities of treatment may be especially harmful for two
basic reasons. One reason –
embodied in the “suspect” classification doc-
trine – has to do with the nature of the group suffering from discrimination.
The law is concerned here with discriminations against groups that have
historically been subjected to hostile, stereotyped or irrational prejudices or
attitudes. But inequalities of treatment may also be particularly harmful,
whether or not any such group is victimized, if the subject matter of the
discrimination –
the benefit withheld or penalty inflicted on an unequal basis
is an especially important one. Arbitrary administration of capital punish-
–
ment to convicted murderers, for example, appears a great deal more harmful
than equally arbitrary imposition of fines upon parking offenders.’58
This third limb of U.S. equal protection seeks to recognize these differ-
ences by providing that discriminations in the allocation of “fundamental”
rights or interests, or discriminations or classifications that burden or penalize
the exercise of interests strongly protected under the Constitution, are subject
to strict judicial scrutiny. Thus, differential treatment in the allocation of free
expression rights bears a heavy burden of justification under the U.S. equal
protection clause. 59 The same is true of classifications in benefit programs
Agriculture v. Murry, 413 U.S. 508 (1973); and Zobel v. Williams, 102 S. Ct 2309 (1982).
This group of cases can probably all be explained as involving either classifications later
recognized as “suspect”, or penalties on established constitutional rights (Reed v. Reed, which
is cited immediately above, for example, involved gender discrimination). Recent business
regulation cases, where rationality arguments were rejected but nevertheless seriously discus-
sed, include U.S. Railroad Retirement Board v. Fritz, 449 U.S. 266 (1980); and Minnesota v.
Clover Leaf Creamery Co., 449 U.S. 456 (1981). See also Schiveiker v. Wilson, supra, note
141 (welfare benefits classification adversely affecting mental patients).
“‘ See supra, text accompanying notes 117 to 128.
181n Furman v. Georgia, 408 U.S. 238 (1972), the U.S. Supreme Court held that the
administration of capital punishment was unconstitutional unless guided by standards designed
to eliminate arbitrariness.
“‘9See Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 92 (1972). Many of the cases
discussed in this paragraph could alternatively have been decided under specific substantive
constitutional guarantees, rather than equal protection principles, where the inequality in-
volved could have been seen as a burden on a substantive right, such as that of free expression.
The Court in Mosley observed, at 96, for example, that “under the Equal Protection Clause, not
to mention the First Amendment itself, government may not grant the use of a forum to people
whose views it finds acceptable, but deny use to those wishing to express less favored or mere
controversial views”. See also Justice Harlan’s dissenting opinion in Shapiro v. Thompson,
supra, note 19, 655.
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that penalize the right to travel,’ or the freedom of religion,”, or of govern-
ment employment regulations that burden the right to bear children.” 2 Dif-
ferential allocations of voting rights also receive close equal protection
scrutiny in the United States.’ 3 The same may be true of laws that provide free
public elementary and secondary school education to some, but not all,
children. ‘1 At one time –
in the 1960s during the latter stages of the Warren
it appeared that the U.S. Supreme Court might add significantly to
Court-
this list of “fundamental” interests, the unequal distribution of which would
cause special equal protection concern.’65 More recently, however, some
Court decisions have expressly rejected such an approach. ,6
The equality rights provision of the Canadian Charter seems to incorpo-
rate a doctrine similar in outline to the U.S. notion of “suspect” classifications
by affording rights against discriminations based on “race, national or ethnic
origin, colour, religion, sex, age, or mental or physical disability”. This list of
“suspect” discriminations includes one that is not suspect under U.S. law
(age) and two others (mental or physical disability) that may or may not be
suspect in the U.S. The Charter, on the other hand, omits alienage and
poverty classifications from its list. That list, however, is apparently not
16’Shapiro v. Thompson, ibid.
161Sherbert v. Verner, 374 U.S. 398 (1963).
61See Cleveland Board of Education v. LaFleur, supra, note 121.
163 See, e.g., Harper v. Virginia Board of Elections, 383 U.S. 663 (1966); and Kramer v.
Union Free School District No. 15, 395 U.S. 621 (1969). Reynolds v. Sims, 377 U.S. 533
(1964) (legislative malapportionment). Unlike the Canadian Charter (s. 3), the U.S. Constitu-
tion contains no affirmative right to vote (see supra, note 19), thus necessitating the use of
equal protection principles in the voting cases. The same need may arise in Canada, should
denial of voting rights be challenged in elections in which the Charter creates no affirmative
right to vote. The Kramer case cited immediately above, for example, concerned an election
for a local school board.
“See Plyler v. Doe, 457 U.S. (1982) (forthcoming) (exclusion of illegal alien children
from free public schools violates equal protection). See also San Antonio School District v.
Rodriguez, supra, note 19 (disparities in educational funding as between different state school
districts sustained, but with the observation that plaintiffs’ argument might have merit if a
state’s financing system resulted in an absolute denial of educational opportunities to any
children).
0 A suggestion that classifications denying public assistance might be so treated was, for
example, thought by many to be inherent in the Court’s observation, in Shapiro v. Thompson,
supra, note 19, 627, that, on the basis of the classification challenged in that case, “the first
class is granted and the second class is denied welfare aid upon which may depend the ability of
food, shelter, and other necessities of life”.
the families to obtain the very means to subsist-
‘6Maher v. Roe, supra, note 28 (state exclusion of abortions from medical assistance
program for indigents held constitutional). See also, e.g., Dandridge v. Williams, 397 U.S.
471, 485 (1970) (limitation on welfare benefits for large families upheld: “In the area of
economics and social welfare, a State does not violate the Equal Protection Clause merely
because the classifications made by its laws are imperfect.”).
1983]
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
853
exclusive, as indicated by the words “in particular” at the beginning of the
enumeration. It seems likely that Canadian courts should and will feel free to
add other kinds of classifications to this “suspect” category if their relevant
characteristics are sufficiently similar to those mentioned. For example,
classifications that discriminate against the very poor would seem a possible
candidate for inclusion.
The Charter is also similar to U.S. doctrine in authorizing, in subs.
15(2), affirmative action programs that ameliorate the “conditions of dis-
advantaged individuals or groups”. However, this Charter provision seems
somewhat broader in its permissive scope than is U.S. affirmative action law,
because it authorizes any “law, program or activity that has as its object” such
amelioration. Under the leading U.S. case, University of California Regents
v. Bakke,1 6 a program is not only required to be intended to remedy the
conditions of the disadvantaged, it must also be tailored carefully and re-
latively narrowly to achieve that objective. 68
A critical question regarding the application of the Charter to “suspect”
classifications concerns the meaning of the word “discrimination”. It seems
reasonably clear that “discrimination” under the Charter includes (as in the
U.S.) discriminations in government benefit programs, as well as differential
distributions of detriments, punishments or penalties. Do “discriminations”
also include classifications that are equal on their face, such as those em-
ployed in systems of separate-but-equal racial or gender segregation? As in
the United States, the answer in Canada should turn perhaps on whether such
segregation, in the light of history and current societal attitudes, seems to
reflect or encourage attitudes of presumed inferiority vis-d-vis one of the
segregated groups. Thus, segregation in access to public facilities affecting
minority racial or ethnic groups would likely constitute discrimination, while
gender segregation in public washrooms could be viewed as non-
discriminatory in either purpose or impact. Most importantly, do Charter
‘6 Supra, note 147.
161This test comes from the plurality opinion on this point, for Justices Brennan, White,
Marshall, and Blackmun. Justice Powell, the fifth Justice addressing the constitutional issue in
Bakke, ibid., 269, would have required that the program be shown to be “necessary” to the
accomplishment of a “compelling” governmental interest. Although Justice Powell was willing
to include the interest in educational diversity as a “compelling” interest for a medical school
admissions program, he would not have considered as compelling the amelioration of dis-
advantage caused by past general societal discrimination (as would the Canadian Charter). The
four remaining Justices in Bakke did not address the constitutional issue. A subsequent plurality
opinion, in a somewhat different context, stated (again more restrictively than does subs. 15(2)
of the Charter) “the need for careful judicial evaluation to assure that any congressional
program that employs racial or ethnic criteria to accomplish the objective of remedying the
present effects of past discrimination is narrowly tailored to the achievement of that goal”.
Fullilove v. Klutznick, supra, note 147, 480.
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“discriminations” include discriminatory effects caused by laws that are
neutral on their face, or are they limited, as they recently have been in the
U.S.,”‘ to “purposeful” differences in treatment? The difficulties in proving
purpose and motivation may provide a strong incentive to Canadian courts not
to make those factors determinative of constitutional rights. 7’ It may also be
relevant on this issue to refer to Charter s. 27, requiring that the Charter “be
interpreted in a manner consistent with the preservation and enhancement of
the multicultural heritage of Canadians”. “Neutral” governmental qualifying
tests or other devices that operate, however unintentionally, to exclude
certain ethnic, racial or similar groups from full effective participation in
Canadian life would appear to create a threat to the underlying purpose of this
section.
In addition to rights regarding the “suspect” discriminations enumerated
in s. 15, does the Charter also incorporate a general requirement (as in the
U.S.) that all governmental classifications be “rational”, and does it, in
addition, permit or require especially close scrutiny of classifications that
touch on “fundamental” rights and interests? The same words that give rise to
these requirements in the U.S. (that government not deny “equal protection of
the laws”) are incorporated in the Charter. A general rationality requirement,
at least where individuals, rather than business entities, are treated different-
ly, may perhaps also be extrapolated from the provision that “every indi-
vidual” (and not just those who identify themselves by reference to their
membership in certain gender, ethnic, religious, and other groups) is entitled
to equal treatment.
Much of the fundamental rights-equal protection jurisprudence that has
evolved in the United States could be derived in Canada from Charter
provisions other than s. 15. Thus, classifications that burden or penalize
mobility or free expression rights can be examined under those provisions
directly.” Parliamentary voting rights are also protected affirmatively by the
Charter, so that the U.S. equal protection approach would be unnecessary
here too. Similarly, denial of equal access to public primary and secondary
school education can perhaps be dealt with under the strong implication in
Charter s. 23 that all Canadians have the “right to have their children receive
“See supra, text accompanying notes 73 to 75 and 151 to 153.
’70See Palmer v. Thompson, supra, note 66,225, noting that “[ilt is difficult or impossible
for any court to determine the ‘sole’ or ‘dominant’ motivation behind the choices of a group of
legislators”. That case also identified an “element of futility” in invalidating a law “because of
the bad motives of its supporters. If the law is struck down for this reason, rather than because
of its facial content or effect, it would presumably be valid as soon as the legislature or relevant
governing body repassed it for different reasons.”
“‘See infra, Parts II(E) and 1(F).
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CANADIAN CHARTER AND U.S. BILL OF RIGHTS
primary and secondary school instruction. ..”. 72 What, however, of rights to
vote on an equal basis in non-parliamentary elections –
such as for local
governmental officials –
or exclusions from government benefit programs
such as public assistance and medical services for the poor, or limitations on
access to higher education or vocational training programs? To the extent that
such exclusions are based, for example, on race, ethnic origin or gender, or
operate disproportionately along such lines, they can be dealt with as “sus-
pect” classifications. Otherwise, the importance of the benefit or privilege
involved can, perhaps, be factored into an examination of the “rationality” of
the particular exclusion; under such an approach, a determination of irra-
tionality would involve the balancing of the governmental purpose for and
necessity of the exclusion, on the one hand, and the harm done to excluded
individuals, on the other. Precisely such a “sliding scale” approach has been
suggested by Mr Justice Marshall, of the present U.S. Supreme Court, as the
proper and most sensitive attitude toward all government classifications,
whether or not they qualify as formally “suspect” or have an impact upon
recognized constitutional rights.’73
E. Mobility Rights
Mobility rights are placed prominently in the text of the Charter.
Although there is no closely equivalent text in the U.S. Constitution, similar
rights have been recognized, as mentioned above,” under several different
U.S. constitutional provisions. Thus, U.S. citizens have a protected right to
leave the U.S. in order to travel abroad,’75 as well as to enter and remain in the
U.S. 176 These rights are recognized expressly in subs. 6(1) of the Charter.
“Although
1
the main purpose of s. 23 is to guarantee such education in either French or
English, depending upon the prior education and the first language learned by the child, the
right to receive education in one or the other language would seem to imply an underlying
general right to receive some education.
73Thus, Mr Justice Marshall has advocated that in all cases, a court should consider “the
character of the classification in question, the relative importance to individuals in the class
discriminated against of the government benefits that they do not receive, and the state interests
a sserted in support of the classification”. Massachusetts Board of Retirement v. Murgia,
supra, note 143, 318. See also his dissents in Dandridge v. Williams, supra, note 166,508; and
San Antonio School District v. Rodriguez, supra, note 19, 70.
’74See supra, note 19.
“I See Kent v. Dulles, 357 U.S. 116 (1958). However, the Supreme Court has recently held
that the right to a passport may constitutionally be made subordinate to reasonable limitations
serving “national security and foreign policy” interests. Haig v. Agee, 453 U.S. 280 (1981).
Government welfare benefits may also be withheld for periods during which the recipient is out
of the U.S. Califano v. Aznavorian, 439 U.S. 170 (1978).
1761t may, however, be possible to “denaturalize” a naturalized citizen (e.g., for fraud in the
naturalization procedure) and then to subject the citizen to deportation. Under the cruel and
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Where travel within the U.S. is concerned, the Supreme Court has
recognized a right to be free from state prohibitions or restrictions on an
individual’s movement from state to state,’ 77 and probably from federal
prohibitions as well.’ 78 There may also be a constitutional right to travel from
place to place within a state.’ 79 The Charter appears to be somewhat more
limited in this respect. Subsection 6(2) confers the right “to move to and take
up residence in any province”, a right that may not include tourism or
temporary visits. (Such rights may, however, be part of the “liberty” pro-
tected under s. 7.) Moreover, subs. 6(2) applies only to citizens and perma-
nent residents, whereas the U.S. rights appear applicable, at least so far as
state or local restrictions are concerned,’80 to aliens as well.
The most difficult mobility rights problems in the United States have
involved indirect negative effects upon mobility or migration caused by
residence and similar requirements for governmental benefits or employ-
ment. In a long line of cases, U.S. courts have held that various minimum
durational residency requirements (that is, requirements that one not only be a
resident of the state to receive benefits, but that one have been a resident for a
specified minimum period of time) may constitute impermissible “penalties”
upon the right to travel. Durational residency requirements have, for exam-
ple, been struck down as impermissible qualifications for public assistance,’ 8
non-emergency medical care for indigents “I and voting.’83 Such durational
unusual punishment provision of the Eighth Amendment, however, expatriation may not be
used as a punishment for crime in the U.S. See Trop v. Dulles, 356 U.S. 86 (1958).
‘”Edwards v. California, 314 U.S. 160 (1941) (state prohibition on bringing indigents into
California invalid); and Crandall v. Nevada, 6 Wall. 35 (1867) (Nevada tax on person leaving
the State by common carrier invalid). See also Shapiro v. Thompson, supra, note 19, 629:
“[The purpose of inhibiting migration by needy persons into the State is constitutionally
impermissible.”
”See,
e.g., United States v. Guest, 383 U.S. 745, 758 (1966) (“freedom to travel
throughout the United States has long been recognized as a basic right under the Constitution”).
19 See Memorial Hospital v. Maricopa County, supra, note 70; and King v. New Rochelle
Municipal Housing Authority, 442 F. 2d 646, 648 (2d Cir. 1971) (“It would be meaningless to
describe the right to travel between states as a fundamental precept of personal liberty and not to
acknowledge a correlative constitutional right to travel within a state.”).
“I The U.S. federal government may have some power to restrict the mobility of aliens in the
U.S. as a condition of their entry. In some circumstances, however, such restrictions might be
challengeable as “suspect” alienage classifications under the Equal Protection Clause. The
Charter does not include alienage in its list of “suspect” classifications, but subs. 6(2) rights
apply expressly to aliens who are permanent residents.
‘ Shapiro v. Thompson, supra, note 19.
“‘Memorial Hospital v. Maricopa County, supra, note 70.
“‘8Dunn
v. Blumstein, 405 U.S. 330 (1972). On the other hand, a brief durational residency
requirement (fifty days) for voting was upheld in Marston v. Lewis, 410 U.S. 679 (1973), and
durational residency requirements for obtaining lower residents’ tuition at a state university and
for instituting divorce actions against non-residents have been upheld. See Starns v. Malker-
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CANADIAN CHARTER AND U.S. BILL OF RIGHTS
requirements might be permissible under the Charter, at least as applied to
publicly provided social services, if deemed to be “reasonable” residency
requirements under para. 6(3)(b). On the other hand, it -may be that that
provision is designed only to authorize reasonable means of determining bona
fide residency, and not to authorize any minimum durational residency
requirements, once residency is established.
What of other requirements that discriminate against non-residents or
persons who have recently become residents of a province? The U.S. Sup-
reme Court has upheld local requirements that municipal employees, such as
police, teachers or firefighters, be residents of the city where they are
employed. ‘4 On the other hand, it has struck down state laws requiring private
businesses to give employment preference to state residents,’
imposing
higher commercial fishing license fees upon non-residents than upon
residents 186 and has also struck down an Alaska system under which state oil
revenues were distributed to state citizens in amounts that increased depend-
ing upon the length of each citizen’s residence in the state.”7 The Charter,
which protects the right to “take up residence” and to “pursue the gaining of a
livelihood”, would appear to lead to similar results where governmental
discriminations are imposed upon employment opportunities on the basis of
provincial residence or provincial origin,’88 but other non-employment related
discriminations (such as the Alaska oil revenue system) might be covered
only if they could be said to interfere with the right to “take up residence” in
any province.” 9 The general theory of U.S. law in this area appears to be to
disfavor discrimination against out-of-staters in any “basic and essential
son, 401 U.S. 985 (1971), aff g 326 F. Supp. 234 (U.S. Dist. Ct, Dist. Minn.); and Sosna v.
Iowa, 419 U.S. 393 (1975). See also Jones v. Helms, 452 U.S. 412 (1981) (upholding a statute
imposing penalties upon parents who abandon their children, and additional penalties on such
parents who thereafter leave the state).
“‘McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645 (1976).
“‘See, e.g., Hicklin v. Orbeck, 437 U.S. 518 (1978). But see White v. Massachusetts
Council of Construction Employers, Inc., 103 S. Ct (1983) (forthcoming) (employment
preference for city residents on city construction projects upheld).
“I Toomer v. Witsell, 334 U.S. 385 (1948). The Court has, however, upheld the imposition
of higher recreational hunting fees on non-residents than on residents. Baldwin v. Fish and
Game Commission, 436 U.S. 371 (1978).
1″Zobel v. Williams, supra, note 156.
‘Paragraphs 6(2)(b) and 6(3)(a), in combination, give the right to “pursue the gaining of a
livelihood” free from discrimination “on the basis of province of present or previous resi-
dence”. This Charter right, however, is modified by subs. 6(4), an “affirmative action”
provision permitting employment discrimination in favor of “socially or economically dis-
advantaged” individuals in provinces with a rate of employment that is below that for Canada as
a whole. The U.S. cases have not recognized such an exception.
“‘A discrimination against the ability of non-residents to buy residential property in a
province may be a relatively clear example of such an interference.
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[Vol. 28
activities”. 1 Charter protection will be equally broad – or perhaps broader
if the right to “take up residence” is held to be implicated by all important
–
discriminations against new arrivals from other provinces.
F.
Rights of Religion, Conscience, Free Expression, and Association
These rights are (with one or two notable exceptions) described in s. 2 of
the Charter in much the same way that they appear in the text of the First
Amendment to the United States Constitution.’ Both texts are extremely
general, leaving a vast area for judicial interpretation. United States case law
is, indeed, elaborate (rivaling perhaps only U.S. equal protection law in the
complexity of the structure that has been built upon a simple, seemingly
straightforward text), and the main questions in comparing the Charter with
the U.S. provisions concern the extent to which Canadian courts will adopt
approaches and solutions similar in nature to those that the U.S. courts have
evolved.
The main textual differences between the Charter and the U.S. First
Amendment are the latter’s “establishment of religion” clause, which the
Charter lacks, and the Charter’s explicit recognition of a separate freedom of
“conscience”. The U.S. establishment clause had, as its central purpose, the
9′”Baldwvin v. Fish and Game Commission, supra, note 186. This attitude has a textual
constitutional basis in art. IV, 2 of the U.S. Constitution, which provides that “the citizens of
each State shall be entitled to all privileges and immunities of citizens in the several States”. A
leading early case confined these privileges and immunities to those that are “fundamental”.
Corfield v. Coryell, 6 Fed. Cas. 546 (no. 3,230) (C.C.E.D. Pa. 1823).
the U.S. “establishment” clause and the Charter’s “conscience”provision –
191 That Amendment provides that “Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridge 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 Charter protects the “fundamental freedoms” of “conscience”,
“religion”, “thought”, “belief’, “opinion”, “expression” (including freedom “of the press, and
,other media of communication”), “peaceful assembly”, and “association”. The main textual
are
differences –
discussed in the text. The freedoms of “thought”, “belief’ and “opinion” are all included within
the U.S. protections, although not textually specified. See, e.g., West Virginia State Board of
Education v. Barnette, 319 U.S. 624,642 (1943): “If there is any fixed star in our constitution-
al constellation, it is that no official, high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion or force citizens to confess by word
or act, their faith therein.” Freedom of association is also protected in the U.S. See, e.g.,
NationalAssociationfor theAdvancement of ColoredPeople v. Alabama, 357 U.S. 449,460-1
(1958): “Effective advocacy of both public and private points of view.. .is undeniably
enhanced by group association. . . . [S]tate action which may have the effect of curtailing the
freedom to associate is subject to the closest scrutiny.” The separately stated U.S. right to
petition the government forredress of grievances probably lies somewhere within the Charter’s
protected freedoms of opinion, expression, press, assembly, and association.
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CANADIAN CHARTER AND U.S. BILL OF RIGHTS
strict prohibition of an official church or religion , –
an aspect of British law
that the U.S. colonists clearly wished to reject. The prohibition has been
expanded, however, into one against not only an established church, but also
against a broad range of affirmative governmental methods of support for
particular religions or religion generally. In recent years, most litigation has
concerned either government funding and support for parochial and religious
schools, 193 or the institution of prayer or Bible reading requirements or
opportunities in public schools. 19 The Charter apparently does not mean to
prohibit some of these “establishments”, such as direct governmental support
for religious schools. Others may perhaps violate the freedom of religion
clause of Charter subs. 2(a), if they are deemed to place sufficiently coercive
pressures or burdens on individual freedom of religious choice. 19s
In subs. 2(a), the Charter recognizes the freedom of “conscience”, in
addition to the freedom of “religion”. This distinction may or may not
represent a significant enlargement of rights compared to U.S. law, depend-
ing upon the meaning given ultimately to the term “conscience”, and whether
that freedom can support a correlative freedom to act or to refuse to act,
despite the command of law. United States constitutional law has not
appeared to recognize a “civil disobedience” right to refuse to comply with
laws that one conscientiously opposes, unless that conscientious opposition
192 The establishment clause has been “incorporated” into the Fourteenth Amendment. See
Everson v. Board of Education, supra, note 19. Hence the prohibition now applies to state as
well as federal “establishments”.
“‘See, e.g., Everson v. Board of Education, ibid. (upholding the reimbursement of
transportation expenses for children to attend private schools including parochial schools);
Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646 (1980); and
Mueller v. Allen, 103 S. Ct (1983) (forthcoming) (the most recent in a tangled line of cases
upholding some forms of financial support for religious schools and rejecting others). See also
McGowan v. Maryland, 366 U.S. 420 (1961) (Sunday closing laws upheld against establish-
ment clause challenge); and Walz v. Tax Commission, 397 U.S. 664 (1970) (State tax
exemptions for religious property upheld).
1’4See, e.g., Engel v. Vitale, 370 U.S. 421 (1962); and School District of Abington
Township v. Schempp, 374 U.S. 203 (1963) (rejecting prayers and Bible reading in elementary
and secondary schools). But see Widmar v. Vincent, 102 S. Ct 269 (1981) (establishment
clause does not prohibit a state university from making facilities available to student prayer
group for religious worship); and Marsh v. Chambers, 103 S. Ct (1983) (forthcoming)
(establishment clause not violated by state legislature’s practice of opening each day with a
prayer by a chaplain paid from public funds). And see Epperson v. Arkansas, 393 U.S. 97
(1968) (state prohibition on the teaching of evolution violates the establishment clause).
19 Thus, the U.S. school prayer cases could perhaps be decided as free exercise cases. Even
though students were not required to participate in prayers led by teachers, their choice of either
participating or conspicuously not participating might be deemed coercive upon the free
exercise rights of children and parents. Indeed, an official state religion might also possibly be
considered to be an impingement on individual freedom. The Supreme Court’s opinion in the
Schempp case, ibid., 222, notes that the establishment and free exercise clauses “may overlap”.
McGILL LAW JOURNAL
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has roots in religious conviction or may be said to represent an exercise of
rights of free expression.’96 The Charter may, on the other hand, constitu-
tionalize a right of civil disobedience where the conscientious root of opposi-
tion to law is sufficiently the product of an individual’s deeply held system of
moral beliefs, whether or not those beliefs are grounded in considerations
normally regarded as religious. 19
With regard to the meaning of the free expression and association
provisions of Charter subss 2(b) to 2(d), United States law suggests the
following basic issues (among others) as ones that may well be likely to arise
in the course of future Canadian judicial interpretations:
‘6Thus, in West Virginia Board of Education v. Barnette, supra, note 191, the Court held
unconstitutional regulations requiring children to salute the flag in public schools. The
regulations were challenged by Jehovah’s Witnesses, who alleged that they violated the
command of scripture. The Court’s opinion appeared to rely upon principles of free expression
and belief, rather than solely upon the free exercise rights of the particular plaintiffs. See the
quotation from this opinion, supra, note 191. See also Wooley v. Maynard, 430 U.S. 705
(1977), where Jehovah’s Witnesses challenged a New Hampshire law requiring automobiles to
carry a licence plate bearing the state motto, “Live Free or Die”. The law was struck down, the
Court observing, at 715, that the State sought to force an individual to “be an instrument for
fostering public adherence to an ideological point of view he finds unacceptable”. First
Amendment freedom of thought, said the Court, at 714, “includes both the right to speak freely
and the right to refrain from speaking at all”, rights the Court referred to collectively as
“individual freedom of mind”.
On the other hand, even clear and sincere religious opposition to compliance with legal
requirements may not always overcome sufficiently powerful state justifications. Although the
U.S. Supreme Court has, for example, held that compulsory school attendance laws may not be
applied to a particular religious group whose principles they violate (see Wisconsin v. Yoder,
supra, note 65), it has also upheld a federal law making bigamy a crime, even though the law
was challenged by a Mormon who claimed that polygamy was part of his religious duty. See
Reynolds v. United States, 98 U.S. 145 (1878). See also Jacobson v. Massachusetts, 197 U.S.
11 (1905) (compulsory vaccination requirement upheld against a freedom of religion chal-
lenge); and Prince v. Massachusetts, 321 U.S. 158 (1944) (anti-child labor law upheld against
freedom of religion challenge by Jehovah’s Witness who said it was child’s religious duty to
sell sect’s newspaper).
Although the U.S. Constitution may not confer a general freedom of conscience not
grounded in religion or rights of free expression or silence, U.S. statutes may confer such
exemptions. See, e.g., United States v. Seeger, 380 U.S. 163, 166 (1965), construing the
“conscientious objector” provision of U.S. selective service law to apply, not only to persons
holding formal religious beliefs, but also to a belief that “occupies a place in the life of its
possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the
exemption”.
117Thus, the Charter may give constitutional protection to the kinds of conscientious beliefs,
described in the last paragraph of the preceding footnote, that have been recognized in the U.S.
as matters of legislative grace under the selective service law. But see Gillette v. UnitedStates,
401 U.S. 437 (1971), where the U.S. Supreme Court refused to read the selective service
statute to extend conscientious objector status to draftees who did no; oppose all wars, but
objected to participation in the war in Vietnam, deeming it to be “unjust”. Would the Charter’s
freedom of conscience provision extend to such a belief?
1983]
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
(a) Non-speech – Does freedom of expression include all expressive mate-
rial, or will some material that has the form of speech 98 nevertheless be
deemed not to qualify for constitutional “speech” or “press” protection?
United States law once recognized a list of defined types of expression –
“obscenity”, defamation, commercial advertisements, profanity, and “fight-
ing words” –
that were given no constitutional speech protection whatever. 199
As a result, these categories of expression could be suppressed without a
demonstration of the normally requisite high level of governmental justifica-
tion. Most of these definitional exceptions have been eliminated in recent
years.’ Only the doctrine that “obscenity” is unprotected remains in full
force, and that doctrine was reaffirmed by the U.S. Supreme Court in 1973 by
the margin of only a single vote.20 Indeed, where defamation of public
officials and public figures is involved, the U.S. Supreme Court has applied
an extremely protective attitude toward speech, permitting damages or penal-
ties only if the defamatory statement is made with “malice” –
that is with
actual knowledge of falsity or in reckless regard of the truth.”2 Since expres-
‘I1n
the U.S., pictures, films and oral expression are, in general, within the free speech
guarantee, as is the printed word. See, e.g., Freedman v. Maryland, 380 U.S. 51 (1965)
(films); and Cantivell v. Connecticut, 310 U.S. 296 (1940) (playing phonograph record on
public street).
’99See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-2 (1942): “There are certain
well-defined and narrowly limited classes of speech, the prevention and punishment of which
have never been thought to raise any Constitutional problem. These include the lewd and
obscene, the profane, the libelous, and the insulting or ‘fighting’ words”. See also Valentine v.
Chrestensen, 316 U.S. 52 (1942) (excluding “purely commercial advertising” from protection
as speech).
m With regard to defamation, seeNew York Times Co. v. Sullivan, 376 U.S. 254(1964); and
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). With regard to commercial advertisements,
see Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748
(1976). With regard to profanity, blasphemy and other “offensive” speech, see Cohen v.
California, 403 U.S. 15 (1971) (“Fuck the draft” protected speech); and Joseph Burstyn, Inc.
v. Wilson, 343 U.S. 495 (1952) (“sacrilegious” film protected). Profanity on radio and
television is, however, subject to regulation. See Federal Communications Commission v.
Pacifica Foundation, 438 U.S. 726 (1978).
v. California, 413 U.S. 15 (1973). To be obscene –
and thus to be definitionally
excluded from First Amendment protection – material must be found to meet the following
test set out in Miller, at 24: The work must “depict or describe sexual conduct.., specifically
defined by the applicable law” and it must also be one which, “taken as a whole, appeal[s] to the
prurient interest” in sex, which portrays sexual conduct “in a patently offensive way” and
which “lacks serious literary, artistic, political, or scientific value”. “Pruriency” and offensive-
ness may be judged by state-wide (or perhaps even more local) standards, rather than by
“national standards”.
21’Miller
GSee New York Times Co. v. Sullivan, supra, note 200. Where defamation of private
citizens is concerned, the Constitution does not require proof of malice, but it does require that
the plaintiff prove both “fault” on the part of the defendant and actual “harm”. See Gertz v.
Robert Welch, Inc., supra, note 200. The extent to which non-defamatory invasions of
individual privacy by the media or others are constitutionally protected in the U.S. remains
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[Vol. 28
sion rights under the Charter are presumably not absolute, it might be the
wisest course to include obscenity, defamation, and the like within the
category of protected expressions, placing at least some burden upon govern-
ment to justify these restrictions.
(b) Symbolic speech – Will the Charter extend constitutional protection to
non-verbal “symbolic” means of expression? United States law has accorded
“speech” protection to certain forms of flag desecration, 03 to public draft-card
burning,” 4 to the wearing of black armbands,0 5 and to similar non-verbal
communications.” Again, a relatively inclusive attitude might be justified by
the non-absolute nature of Charter rights.
(c) Rights of access – With the exception of a right of access to criminal
trials,27 U.S. constitutional free press rights have so far been rights to be free
from prohibitions or regulations of publication, and have not included
affirmative rights of access to proceedings that the government seeks to keep
confidential.2″8 However, once the press in the U.S. obtains information –
even, perhaps, by illegal means or in violation of legitimate government
attempts to restrict access to such information –
the publication of such
unclear. See Time, Inc. v..Hill, 385 U.S. 374 (1967); and Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975). Protection of copyright and similar property interests has been constitu-
tionally reconciled with free speech guarantees in the U.S.. See Zacchini v. Scripps-Holvard
Broadcasting Co., 433 U.S. 562 (1977) (state may prohibit television news program from
filming and broadcasting plaintiff’s complete “human cannon ball” circus act).
“‘3 See Street v. New York, 394 U.S. 576 (1979) (flag burning).
20See United States v. O’Brien, supra, note 66.
2 See Tinker v. Des Moines Independent Community SchoolDistrict, 393 U.S. 503 (1969).
106It is also clear that U.S. First Amendment protection applies to expression generally, and
not only to “political” speech or assembly. But see Young v. American Mini Theatres, Inc., 427
U.S. 50 (1976) (plurality opinion) suggesting the possibility of a somewhat lower level of
protection for some non-political speech: “[S]ociety’s interest in protecting… [adult films] is
of a wholly different, and lesser, mangitude than the interest in untrammeled political
debate. . . . [F]ew of us would march our sons and daughters off to war to preserve the citizen’s
right to see ‘Specified Sexual Activities’ exhibited in the theaters of our choice.” The same
theme appears in the plurality opinion in Federal Communications Commission v. Pacifica
Foundation, supra, note 200 (radio broadcast of comedian George Carlin’s “seven dirty
words” monologue).
A related question concerns whether expression rights are available only to those who
wish to send messages, or whether there are also protected rights to receive information. U.S.
law generally recognizes the right to receive. See, e.g., Lamont v. Postmaster General, 381
U.S. 301 (1965). This result seems even easier to reach under the Charter, which protects
“thought”, “belief’ and “opinion” as well as the freedoms of “speech” and “press”.
0 See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
2mSee, e.g., Pell v. Procunier, 417 U.S. 817 (1974); and Gannett Co. v. DePasquale, 443
U.S. 368 (1979).
1983]
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
863
material is protected strongly.9 Will the Charter’s press and media rights
include some affirmative access rights and, if so, what proceedings or in-
formation will government nevertheless be permitted to keep secret or con-
fidential? U.S. courts are just beginning to face this issue.2″‘
(d) Prior restraints- In general, U.S. law takes the dimmest possible view
of “prior restraints” such as judicial injunctions or licensing laws preventing
publication or speech before it occurs. 2″ However, the protection given to
non-“prior” restraints (such as criminal and civil penalties for accomplished
publications) is so strong in many areas that the doctrinal difference may, in
fact, be insignificant. Will the Charter treat all restraints on speech equally,
or will distinctions be made between licensing and prior injunctions, on the
one hand, and monetary damages, criminal penalties and non-criminal sanc-
tions, such as discharge from employment, on the other?
(e) Content restrictions vs neutral “time, place and manner” regulations-
Restrictions directed to the “content” of expression receive perhaps the
strongest degree of constitutional protection accorded to any non-absolute
individual right under United States constitutional law. Thus, “subversive”
advocacy may not be prohibited unless found by the judiciary (legislative
findings do not suffice) 2 2 to create a “clear and present danger” of significant
harm, such as violence, and to be intended to incite such harm.2 3 Speech may
never be completely banned in the U.S. merely because it is ideologically
unsound, disagreeable, offensive, or vulgar. 14 A correlative rule strongly
disfavors content discriminations in all regulations of speech, even those that
do not amount to complete prohibitions.” 5
mSee, e.g., New York Times Co. v. United States, 403 U.S. 713 (1971) (the “Pentagon
Papers” case); and Nebraska Press Association v. Stuart, 427 U.S. 539 (1976) (invalidating a
judicial “gag” order prohibiting the press from publishing accused’s confession prior to trial).
10 See Globe Newspaper Co. v. Superior Court, 102 S. Ct 2613 (1983).
The existence of governmental broadcasting stations in Canada raises a number of free
expression issues that are not as applicable in the U.S., which has no direct counterpart to the
C.B.C. Does the Charter apply to C.B.C. policies and activities? If so, does the Charter
impose fairness or equal-time requirements on C.B.C. treatment of political or social issues?
The U.S. Supreme Court considered some of these issues in CBS v. Democratic National
Committee, 412 U.S. 94 (1973); and Perry Education Association v. Perry Local Educators’
Association, 103 S. Ct 948 (1983).
“I1 See Near v. Minnesota, 283 U.S. 697 (1931). See also New York Times Co. v. United
States, ibid.; andNebraska PressAssociation v. Stuart, ibid. An example of apermissible prior
restraint might be a restraint on “the publication of the sailing dates of transports or the number
or location of troops” during wartime. Near v. Minnesota, at 716.
2 2See Dennis v. United States, 341 U.S. 494 (1951).
“13See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969).
214See, e.g., Cohen v. California, supra, note 200.
2” See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); and Consolidated
Edison Co. ofNew Yorkv. Public Service Commission, 447 U.S. 530,537 (1980) (recognizing
“[the First Amendment’s hostility to content-based regulation”).
McGILL LAW JOURNAL
[Vol. 28
In addition to offering protection against prohibitions directed toward
the content of speech, the U.S. Constitution also incorporates protections
against a wide variety of regulations upon the “time, place and manner” of
expression, such as regulations restricting parades, demonstrations, loud-
speakers, handbilling, and leafletting. The U.S. constitutional rules here
permit significantly more regulation than where government seeks to censor
certain messages entirely. In part, this approach reflects a recognition that
time, place and manner regulations are more likely to reflect legitimate
concerns for safety and public convenience than regulations of content. Such
regulations are also less likely to result in complete suppression of certain
messages. In considering time, place and manner regulations, United States
courts display a concern for content neutrality, for the substantiality of the
public interest on which the regulations are based, and for whether the rules
adopt a “least restrictive alternative”, that is, whether they are as narrowly
tailored as possible (and thus are as minimally intrusive on expression as
possible) while vindicating legitimate governmental concerns. 16 Rules that
are either “overbroad” in relation to their legitimate purposes,” 7 or unneces-
sarily vague,” 8 are struck down frequently either on their face, or as applied.
By using doctrines such as vagueness, overbreadth and the disfavor of content
discriminations, U.S. courts are often able to protect expressive public
activity without questioning the reasonableness or justifiability of the under-
lying reasons for governmental regulation.2 19 Will the Charter protect speech
and assembly from time, place and manner restrictions, as well as from
content prohibitions? If so, will the same level of justification be required for
both types of regulations, or will content prohibitions be more suspect, as in
the United States?
Finally, the right to engage in public expressive
(f) The public forum –
activity is limited in the United States to what the courts will recognize as a
“public forum”. These rights do not normally exist on private property ,20 or in
public buildings or places that government legitimately seeks to reserve for
other uses.” Will the Charter incorporate a’narrow public forum concept as a
limitation upon its free expression rights –
thus permitting demonstrations
216See, e.g., Heffron v. Int’l Soc. for Krishna Consciousness, 452 U.S. 640 (1981).
2″ See, e.g., Gooding v. Wilson, 405 U.S. 518 (1972).
21See, e.g., Smith v. Goguen, 415 U.S. 566 (1974).
219 See, e.g., Cox v. Louisiana, supra, note 65; and Cox v. Louisiana, 379 U.S. 559 (1965).
20 See, e.g., Hudgens v. National Labor Relations Board, supra, note 50.
221 See, e.g., Adderley v. Florida, 385 U.S. 39 (1966) (premises of county jail not a public
forum); and Greer v. Spock, 424 U.S. 828 (1976) (military facility not a public forum). But see
Brown v. Louisiana, 383 U.S. 131 (1966) (quiet demonstration in public library constitutional-
ly protected). See also Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (advertising
spaces in city-owned buses not a public forum; city permitted to prohibit political messages in
such spaces while permitting commercial messages).
1983]
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
865
and assemblies to be restricted to certain designated areas –
or will it
generally require a substantial justification for such geographical restrictions?
Conclusion
This article has undertaken a comparison between the political, civil and
personal rights afforded protection under the U.S. Constitution, on the one
hand, and the new Canadian Charter of Rights and Freedoms, on the other.
The two sets of protected individual rights bear a great deal of essential
similarity. Both systems, for example, protect the freedoms of expression and
religion; both offer protection against discriminatory treatment; both protect
mobility rights and the rights to vote and stand for election; both also protect a
broad and similar range of rights of defendants in criminal proceedings, such
as the rights to a fair trial, to be free from compulsory self-incrimination and
to be free from unreasonable searches, seizures and arrests.
Although the broad outline of protected rights is similar in the two
systems, only time will tell whether, and to what extent, these similarities will
extend into more specific definitional issues. Both the Charter and the U.S.
Constitution are quite general in their language. The U.S. text has been
subjected to an enormous amount of judicial interpretation over the years –
interpretations which, at times, have reached an extraordinary level of consti-
tutional detail. This process is just beginning in Canada and it is not at all clear
that Canada will –
follow U.S. precedent on specific issues
even when the relevant constitutional texts are similar. Nor has Canada yet
faced two questions that are of critical importance in assessing the quality of
constitutional protection for individual rights: the applicable standard or
standards of justification that government must satisfy when it impinges upon
protected rights, and the form of judicial enforcement of individual rights
protections that may be available in particular situations and circumstances.
These two subjects – not covered in the present article – will be addressed in
a subsequent paper.
or should –
While the catalogs of rights contained in the Charter and U.S. Constitu-
tion are generally similar, there are some important textual differences as
well. The U.S. Constitution, for example, prohibits the “establishment of
religion” by government, and also contains explicit protections for property
and contract rights. The Charter contains no directly comparable provisions.
The Charter, on the other hand, has explicit sections regarding language
rights in education, governmental processes and governmental services. In
general, language rights have no constitutional status in the U.S. The Charter
also emphasizes, as the U.S. Constitution does not, the need to preserve the
multicultural heritage of the nation; and the Charter also contains a broad and
apparently affirmative guarantee (not present in the U.S.) of the rights to life,
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[Vol. 28
liberty and security of the person. Although the effect of these textual
differences may be eliminated to some extent by judicial interpretations, it is
likely that some significant disparities will nevertheless remain.
Perhaps the most interesting of the unanswered questions raised by
comparing the rights protected by the Charter and the U.S. Constitution
concerns the potential applicability in Canada of a concept similar to the U.S.
principle that all government regulations and classifications must conform to
a general standard of constitutional “reasonableness”. This flexible doctrine
has provided the underpinning for a significant amount of constitutional rights
development in the U.S. It is, for example, the basis for the U.S. principle of
“substantive” due process –
a doctrine that once primarily protected business
interests, but that has more recently evolved into the important U.S. principle
of personal privacy. It has also played a large role in the broad development of
the U.S. Equal Protection Clause. These broad due process and equal protec-
tion doctrines, more than any others, have been the tools through which U.S.
courts have, at times, seemed to exercise quasi-legislative power concerning
important and controversial social policy questions. The Charter’s text does
not expressly incorporate identical principles, but it contains provisions that
may possibly serve as vehicles for their ultimate adoption through an interpre-
tive process.
As with other basic questions about the meaning of the Charter, answers
here must await the course of future Canadian judicial decision-making. That
process of constitutional interpretation through the judiciary has taken place
in the United States over a period of almost two hundred years. It is unlikely,
moreover, that the process will ever be fully completed. The U.S. Constitu-
tion is a constantly evolving document –
a feature that is a source both of
great strength for U.S. constitutional principles and of continuous con-
troversy. Although the evolution of basic constitutional human rights princi-
ples may proceed somewhat more swiftly in Canada (which has the experi-
ence of the U.S., other nations and the international community –
as well as
its own experience with national and provincial civil rights legislation –
upon which to draw) the process seems almost certain to be one that will be
evolutionary in nature over a substantial period of time. The adoption of the
Canadian Charter represents the beginning, rather than the culmination, of a
system of developing constitutional rights that will likely be an important
feature of life and government in Canada for many years to come.
