Executive Override of the Canadian Charter of Rights and Freedoms

Tuesday, December 9, 2014

By Pearl Eliadis
Pearl Eliadis is a Montreal lawyer. She teaches at the Faculty of Law, McGill University and is a Full Member of the Centre for Human Rights and Legal Pluralism. 

This blog post was contributed for Human Rights Day, observed on December 10.

This text is drawn from the introductory pages of Speaking Out on Human Rights: Debating Canada’s Human Rights System (McGill-Queen’s University Press, 2014). 

There is a broad consensus in Canada when it comes to human rights. Between 2010 and 2012, Focus Canada surveys showed that more than 70 percent of respondents considered the Canadian Charter of Rights and Freedoms to be an important symbol of Canadian national identity. Only health care received a higher rating.[1]

This commitment is increasingly under threat. In 2006, Ray Pennings and Michael Van Pelt published an article that described the model of government developed after Pierre Trudeau’s election as prime minister as operating on a “pan-Canadian consensus” that was based on, among other things, tolerance and an “aggressive human rights polity.” The authors said this pan-Canadian consensus has unravelled, replaced by a “new consensus” that does not include multiculturalism, tolerance, or human rights.[2] The Toronto Star’s Thomas Walkom memorably dubbed it the “new, grim consensus.”[3]

One of its key features is the federal government’s systematic marginalization of human rights and the Charter. In 2006, the federal government terminated the Court Challenges Program (CCP), which had funded Charter-based litigation that successfully challenged discriminatory laws and practices.[4]  Longstanding and effective non-profit organizations with human rights mandates have lost funding or seen their charitable status come under enhanced scrutiny.[5]

In December 2012, Department of Justice lawyer Edgar Schmidt filed a lawsuit alleging that the department fails in its duty to inform Parliament when proposed new legislation risks violating the Charter.[6] The allegations have not been proven in court, but they help to explain the baffling lack of compliance with elementary human rights.

Consider the issue of mandatory minimum sentences: they have failed to serve the traditional goals of punishment, including proportionality between crime and punishment, let alone reduce crime.[7]  Their constitutionality is in doubt.[8]When the federal government passed Bill C-10, the Safe Streets and Communities Act,[9] experts said that the increased mandatory minimum sentences would also fail to pass muster, especially as regards Canada’s fastest-growing prison populations – women with mental disabilities and Aboriginal persons.[10]

Bill C-31 – Protecting Canada’s Immigration System Act – creates a new class of “designated foreign nationals” who can be detained without due process, for what is essentially a mandatory, warrantless, automatic, and unreviewable period of six months following the obligatory initial review.[11]

In 2014, the federal government’s cuts to a federal health program for refugee claimants and others seeking Canada’s protection were called “cruel” and unconstitutional by the Federal Court.[12]

These are but a few illustrations of a pattern of executive overrides, whereby federal Justice officials are essentially instructed to ignore the Charter except in the extreme cases.[13]  The utter lack of interest in the empirical basis that might support new laws and policies has led one researcher to quip about the shift from evidence-based policy-making to decision-based evidence-making.[14]  Diminishing respect for the Canadian Charter of Rights and Freedoms since 2006 is distancing Canada from the rule of law and fostering a disenabling climate for human rights institutions and human rights defenders.  

[1]               Focus Canada 2010, 2011, 2012. Online: <>.

[2]               Ray Pennings and Michael Van Pelt, “Replacing the Pan-Canadian Consensus,” Policy Options (March 2006) 52. At page 53, the authors refer to “an aggressive rights-based polity that identifies with tolerance over definition.” Their description of the “new consensus” does not include multiculturalism, tolerance, or human rights. The article has been republished online on the web site of Cardus, a conservative Christian think tank. Online: <>.

[3]               Thomas Walkom, “Harper’s New, Grim Consensus,” Toronto Star (3 February 2010), online: Toronto Star < article/759582--harper-s-new-grim-consensus#article>.

[4]               The CCP was created by the Trudeau Liberals in 1978 to support linguistic rights. It was expanded to cover equality rights when the Charter took effect in 1985. The program was axed in 2006, although its language rights component was revived in 2008.

[5]               These include 52 progressive charities under audit by the Canada Revenue Agency since 2012, and a series of decisions to strip away government funding from leading nonprofits, including many women’s equality seeking groups, immigrant settlement services, international co-operation organizations and the HIV/AIDS Legal Network. See Broadbent Institute, Stephen Harper's CRA: Selective audits, "political activity," and right-leaning charities (2014), online: <>; Lawyers Rights Watch Canada, Canada: The Shrinking Space for Dissent in Canada | Report Written Statement to the 26th Session of the United Nations Human Rights Council (May 2014). Online: <>.

[6]               Edgar Schmidt v. Canada (Attorney General), Statement of Claim, T-2225-12 (Federal Court).

[7]              See, e.g., See Eric Luna, “Mandatory Mandatory Minimum Sentencing Provisions under Federal Law” (Testimony to the United States Sentencing Commission, May 27 2010) online: Cato Institute <>.

[8]               R v. Smickle, 2013 ONCA 678

[9]               Bill C-10, An Act to Enact the Justice for Victims of Terrorism Act and to Amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the

Youth Criminal Justice Act, the Immigration and Refugee Protection Act and Other Acts, 1st Sess, 41st Parl, 2012 (assented to 13 March 2012) SC 2012, c 1. Bill C-10 came into force in June 2012.

[10]             John Edwards, Willie Gibbs, and Ed McIsaac, “Jails Don’t Keep People Out Of Jail,” Globe and Mail (5 January 2012) A15, online: Globe and Mail <>.

[11]             The Protecting Canada’s Immigration System Act, SC 2012, c 17. See ss. 20.1, 57.1 of the Immigration and Refugee Protection Act, SC 2001, c 27

[12]             Canadian Doctors for Refugee Care v. Canada (Attorney General) 2014 FC 651.

[13]             Supra, note 8.

[14]             David Macdonald, “Attack on Evidence-based Public Policy.” Delivered at Voices-Voix meeting on “The State and Health of Democracy in Canada,” Ottawa, 11 May 2012.



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