British Columbians can blame Canada's Charter of Rights and Freedoms for the agonizing two-week wait to find out who won their province's recent, photo-finish election.

They were kept in suspense while crucial absentee ballots were counted — a process which, as it turned out, changed nothing, leaving the province in an unprecedented state of instability.

If not for the charter, there would have been no absentee ballots to count.

Back in 1983, when the charter was just one year old, two young British Columbians who were studying law in Ontario challenged B.C.'s failure to provide them with a way to cast ballots while out of province.

B.C.'s Court of Appeal eventually agreed with the students that the lack of a provision for absentee voting violated their democratic right to vote, as guaranteed in the charter.

It was an early taste of the kind of profound impact the charter was going to have on Canadian society.

Sunday shopping. Same-sex marriage. Medical assistance in dying. No legal restrictions on abortion.

Those are just some of the momentous changes the charter has wrought since it was entrenched in the newly patriated Constitution on a rainy April day 35 years ago during a black-tie signing ceremony — the solemnity of which was interrupted by justice minister and future prime minister Jean Chretien muttering an oath upon discovering the nib of the pen was broken, provoking a rare regal laugh from the Queen.

"The Canadian charter has had a lasting and positive impact on our country," Beverley McLachlin, chief justice of the Supreme Court of Canada, told a recent Senate symposium celebrating the country's 150th birthday.

"Not only has its enactment proved to be one of the defining moments of the last 150 years, the charter has quite simply — poll after poll tells us this — become part of the Canadian identity."

Indeed, in a 2015 Statistics Canada survey, 70 per cent of Canadians named the charter as a very important national symbol — beating out the Maple Leaf flag, the national anthem, the red-coated Mounties, hockey and the beaver.

"I think it's made an enormous impact on the lives of ordinary Canadians," says Josh Paterson, executive director of the B.C. Civil Liberties Association, which has led a number of charter challenges to federal and provincial laws, including spearheading the landmark case that saw the prohibition on medical assistance in dying struck down.

"Many people may not even realize that some of the rights and freedoms they enjoy today, or ways in which the government might not interfere with them, were as a result of the charter."


The Charter of Rights and Freedoms is considered by Canadians to be the country's most iconic symbol, ahead of the flag, the national anthem, the Mounties, hockey or the beaver, according to a 2015 Statistics Canada survey.

But how much do Canadians really know about the charter? Take this short quiz and test your knowledge.

1. Were Canadians' rights protected before the charter was adopted?

2. Has the charter ever been amended?

3. Are the rights and freedoms enshrined in the charter absolute?

4. Can the so-called notwithstanding clause (Sec. 33) be used to override all rights and freedoms in the charter?

5. Has the federal government ever invoked the notwithstanding clause?

6. Does the charter guarantee Canadians the right to life, liberty and the pursuit of happiness?

7. Does the charter enable Canadians to "plead the fifth"?

8. Does the charter apply to everyone in Canada?

9. Does the charter guarantee the right to bear arms?

10. Does the charter apply to private individuals, businesses and organizations?

  • a Yes

    a Yes

    a Yes

    a Yes

    a Yes

    a Yes

    a Yes

    a Yes

    a Yes

    a Yes

  • b No

    b No

    b No

    b No

    b No

    b No

    b No

    b No

    b No

    b No

Prior to the charter, various federal and provincial laws protected Canadians' rights, including the 1960 federal Bill of Rights. However, those laws could be changed or scrapped at the whim of a government. None had the permanence of being entrenched in the Constitution, the supreme law of the land.
Yes, twice. But it's difficult, requiring the approval of Parliament and at least seven provinces representing 50 per cent of the national population.
Section 25 — which guarantees nothing in the charter diminishes existing aboriginal rights — was amended in 1983 to expand protection of rights associated with land-claim settlements to include rights that may be acquired in future.
In 1993, Sec. 16.1 was added to the charter to enshrine equality of status, rights and privileges for French and English communities in New Brunswick, including the right to distinct educational and cultural institutions.
No. They are "subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
Moreover, federal or provincial governments can also invoke Sec. 33 of the charter to expressly declare that a piece of legislation shall operate for five years, notwithstanding the fact that it violates the charter.
No. It can be used to override sections dealing with fundamental freedoms (religion, expression, peaceful assembly and association), legal rights and equality rights. It cannot be used to override sections dealing with democratic rights, mobility rights, minority language education rights or the equal status of both official languages.
No. But several provinces have: Alberta, Saskatchewan and, most notably, Quebec. In the years following patriation of the Constitution in 1982, the Quebec government routinely invoked the clause for all legislation, whether or not it was needed, to protest the fact that patriation occurred despite the objections of Quebec's then-separatist government.
No. Those "unalienable rights" are enshrined in the U.S. Declaration of Independence.
The Canadian charter is more prosaic. It says everyone "has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
No. That ubiquitous phrase refers to the fifth amendment to the U.S. Constitution, which enshrined the right of Americans to refuse to testify against themselves.
In Canada, Sec. 11 (c) of the charter similarly says anyone charged with an offence has the right not to self-incriminate. But somehow the phrase "plead the eleventh" hasn't caught on.
Yes, generally. But there are some exceptions — like the right to vote and the right to enter, remain in and leave Canada — which apply only to citizens.
No. That's another feature of the American Constitution that has no equivalent in Canada.
No. It applies only to matters within the authority of federal, provincial and territorial governments.
You got ? out of 10!

In McLachlin's view, the charter has become such a popular icon because it gives expression to the fundamental values Canadians hold dear — "the values that keep us together as citizens, the values that make our country work" — while providing a mechanism for "balancing conflicting interests and goals in a complex, multicultural society."

Of course, not all the transformations the charter has wrought have been warmly welcomed by all Canadians.

Indeed, even Jean Chretien, one of the charter's key architects, was initially uncomfortable, at least politically, with unrestricted access to abortion and the expansion of gay rights.

"Being a Roman Catholic from rural Quebec, it was not easy," he recalls.

Former prime minister Jean Chretien is seen, Tuesday, March 7, 2017 in Ottawa. THE CANADIAN PRESS/Justin Tang

In June 2003, just as Chretien was anticipating his retirement as prime minister, the Ontario Court of Appeal ruled that the traditional definition of marriage violated the equality rights of gays and lesbians. The ruling immediately legalized same-sex marriage in the province.

"It's the last problem I wanted to have. I was leaving a few months later," says Chretien.

He ultimately decided not to appeal the ruling and instead referred a draft Civil Marriage Act to the Supreme Court for advice on its constitutionality. The act was eventually enacted in 2005.

At the time, polls suggested Canadians were badly divided over the issue. Emotions ran high, with Catholic priests actively campaigning against same-sex marriage — one bishop actually said Chretien would burn in hell — and Alberta Premier Ralph Klein threatening to invoke the notwithstanding clause to override the charter.

Yet today same-sex marriage, adoption and divorce have become commonplace.

"That's what's so amazing for us to sit back now, we're coming up to 14 years of marriage, it really is kind of ho-hum now," muses Michael Stark, one of "the two Michaels" who became the first gay couple in Canada to legally wed just hours after the Ontario appeal court ruling.

Michael Stark, left, and Michael Leshner kiss after their marriage in Superior Court in Toronto on Tuesday, June 10, 2003. (CP PHOTO/Frank Gunn)

"The charter enabled us to argue the same-sex marriage case on strictly legal grounds. It put aside all the prejudices and all the stuff that gets thrown at you by the church and the religious right and it just brings it down to basic legal principles," he says.

"It was, from my point of view, a proud moment as a Canadian to think that your charter of rights can help make your life better and more equal, especially as a minority."

It was, agrees his partner, former Crown prosecutor Michael Leshner, "a profound social change that very positively and directly affected so many Canadian lives."

Michael Leshner (left) and Michael Stark (centre) sign their marriage licence after being married by Superior Court Justice John Hamilton (right) in Toronto on Tuesday, June 10, 2003. (CP PHOTO/Frank Gunn)

Peter Hogg, Canada's foremost constitutional scholar, believes the charter has not so much revolutionized Canadian society as sped up changes that would likely have occurred eventually in any event.

"While the charter has been very influential and has forced a number of changes to the law, it's quite interesting when you think about the changes, they're actually sort of part of the zeitgeist that has affected other similar western countries," he says.

However, there is one area — myriad court rulings that have strengthened the rights of those accused of crimes and limited police powers  — where Hogg thinks change may not have happened without the array of legal rights enshrined in the charter.

Whereas the judiciary is sensitive to legal rights, among the general populace he suspects "there actually isn't much support for people who are accused of crime because I think there's probably a widespread assumption that they're probably guilty anyway and don't deserve particular consideration."

But even when a good chunk of the population is initially upset by a charter ruling, Hogg marvels at the way Canadians, by and large, accept it and move on — unlike the United States, where abortion, for instance, gets re-fought in every election. He puts that down to Canadians' enormous respect for the charter and for the judiciary, which is not politicized as it is in the U.S.

It may also reflect the fact that judges, while not as beholden to public opinion as politicians, are nevertheless conscious that the court "can't be either too far ahead or too far behind where society stands on these issues," says University of Waterloo political scientist Emmett Macfarlane, who has written extensively about the Supreme Court and the impact of the charter.

"If the court was constantly rendering decisions that the public simply disagreed with, eventually it would have a legitimacy problem," he says. "I think that actually conditions some of their decisions."


The Charter of Rights and Freedoms has resulted in many court rulings that have produced momentous changes to Canadian society. Here’s a chronology of some of the most important rulings:

Canada breaks with its colonial past, patriates the Constitution so that the highest law of the land can be amended without the approval of Great Britain. The patriated Constitution includes some new provisions, including enshrining the Canadian Charter of Rights and Freedoms.
Hunter v. Southam Inc. The Supreme Court of Canada strikes down sections of the Combines Investigation Act, which had been used to conduct a warantless search of Southam Inc.'s office in Edmonton. The court rules that the search violated the charter right to be secure against unreasonable search and seizure.
R. v. Big M Drug Mart. Supreme Court strikes down the federal Lord's Day Act, which prohibited Sunday shopping, as a violation of the charter's guarantee of freedom of religion.
Singh v. Minister of Employment and Immigration. Supreme Court rules that the right to fair legal process applies to refugee claimants, each of whom is entitled to an oral hearing to state their case and hear the case against them. Ruling forces revamp of rules and is subsequently blamed for creating backlogs of refugee claims.
R. v. Oakes. Supreme Court strikes down a section of the Narcotics Control Act, which presumed that a person found in possession of a drug intended to traffic in it. The court rules that such "reverse onus" provisions are contrary to the charter right to be presumed innocent until proven guilty.
The ruling lays out the criteria for using Sec. 1 of the charter to impose "reasonable limits" on rights and freedoms "as can be demonstrably justified in a free and democratic society."
R. v. Collins. Supreme Court limits police powers, tosses evidence from a search that violated charter right against unreasonable search and seizure.
Ford v. Quebec. Supreme Court strikes down Quebec's French-only commercial sign law as a violation of charter's guarantee of freedom of expression. Quebec subsequently uses the notwithstanding clause to override the charter, sparking national unity tensions that ultimately contribute to the failure of the Meech Lake constitutional accord in 1990. In 1993, Quebec introduces a new law consistent with top court's ruling, allowing other languages on commercial signs but requiring French to be predominant.
R. v. Mack. Supreme Court orders stay of proceedings against an alleged drug trafficker, ruling that threatening behaviour of a police informant amounted to entrapment, contrary to the principles of fundamental justice.
R. v. Rowbotham. Ontario Court of Appeal rules that the state is obliged to fund legal counsel when the accused can't afford a lawyer and the case is sufficiently complex that counsel is necessary to receive a fair trial. Ruling leads to an explosion of "Rowbotham applications" for a stay of proceedings until state-funded counsel is provided.
R. v. Morgentaler. Supreme Court strikes down Canada's abortion law, which required women to get the approval of a therapeutic abortion committee at an accredited hospital, to terminate a pregnancy. The court rules the complicated procedure violates women's right to security of the person. The federal government subsequently makes two attempts in 1988 and 1989 to pass a new abortion law. Both fail. Canada remains without a criminal law on abortion to this day.
Dr. Henry Morgentaler delivers a victory sign as he leaves the Supreme Court of Canada in Ottawa on Jan. 28, 1988. The Supreme Court of Canada ruled in his favour and struck down anti-abortion laws. Morgentaler, who helped overturn Canada's abortion law 25 years ago, died Wednesday at his Toronto home.THE CANADIAN PRESS/Fred Chartrand
Irwin Toy Ltd. v. Quebec. Supreme Court rules that Quebec law prohibiting advertising directed at children under the age of 13 does infringe freedom of expression but that it's a reasonable, justifiable limit, under Sec. 1 of the charter.
Mahe v. Alberta. Supreme Court rules that charter's protection for minority language education was intended to ensure not just minority language instruction and schools where numbers warrant but also a degree of management and control of those facilities by the linguistic minority. The court says that could involve establishing independent school boards or, where the number of students is small, guaranteeing representation of linguistic minorities on existing school boards.
R. v. Hebert. Confession obtained through undercover police officer posing as cellmate tossed by Supreme Court as violating a person's charter right against self-incrimination.
R. v. Askov. Supreme Court says two-year delay in bringing a criminal case to trial violates charter right to trial within a reasonable time. Results in thousands of criminal charges being stayed.
R. v. Keegstra. Alberta school teacher Jim Keegstra charged with wilfully promoting hatred for anti-Semitic teachings. Supreme Court rules that hate speech law does infringe freedom of expression but is nevertheless demonstrably justified in a free and democratic society (Sec. 1 of charter).
Jim Keegstra seen here June 5, 1985. (CP PHOTO/Dave Buston)
R. v. Stinchcombe. Supreme Court rules that the Crown has an obligation to disclose all relevant evidence to defence counsel, even if it undermines the Crown's case and is not presented at trial.
R. v. Butler. Supreme Court rules that obscenity law violates freedom of expression but is justifiable under Sec. 1. Court emphasizes "community standards" for determining what types of obscene material may or may not be tolerated.
R. v. Zundel. Holocaust denier Ernst Zundel charged under so-called "false news law." Supreme Court rules law violates freedom of expression.
Photo of Ernst Zundel flanked by supporters. (CP PHOTO/Bill Becker)
R. v. Bartle. Supreme Court rules that the right to counsel means police must not only inform an accused of that right but ensure accused has information, such as toll-free duty counsel phone number, necessary to exercise that right.
R. v. Feeney.  Supreme Court overturns Michael Feeney’s conviction for second degree murder on the basis that the police had unlawfully entered his home without a warrant. Finds that the charter's increased protection of privacy of the home outweighs the interest of police in making warantless arrests.
Vriend v. Alberta. Supreme Court rules that sexual orientation should be "read in" to the charter as a prohibited ground of discrimination.
Delwin Vriend, a gay man who was fired from his job at an Alberta College smiles at a news conference in Edmonton on April 2, 1998. The Supreme Court of Canada ruled that the government of Alberta must recognize sexual orientation under the Charter of Rights and Freedoms. (CP PHOTO/Kevin Frayer)
Law v. Canada. Supreme Court sets controversial, subjective "human dignity" test for determining equality rights claims. Court rules that Sec. 15 of the charter is intended to "prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration."
M. v. H. Supreme Court rules that same-sex couples have the same rights as opposite-sex couples, including the right to spousal support when a relationship disintegrates.
John Fisher (left), executive director of Equality for Gays and Lesbians Everywhere leaves the Supreme Court of Canada in Ottawa Thursday May 20, 1999 with his partner Jerome St-Denis. (CP PHOTO/Tom Hanson)
Arsenault-Cameron v. Prince Edward Island. Supreme Court rules that P.E.I. must provide a French school for francophone children in Summerside, rather than bus them to another community. The court says the charter's protection of minority language education rights was intended to fix past wrongs and preserve and promote minority language communities.
United States v. Burns. Supreme Court rules that Canada can not extradite anyone facing trial in the U.S. for a capital crime, without first getting assurance that the death penalty will not be imposed.
Sauve v. Canada (Chief Electoral Officer): Prisoners win the right to vote. Supreme Court strikes down a section of the Canada Elections Act that prohibited convicted criminals serving sentences of more than two years from voting.
Ontario becomes the first province to legally recognize same-sex marriage, following an Ontario Court of Appeal decision that restricting marriage to heterosexual couples was a violation of the charter's guarantee of equality rights. Subsequent court rulings prompt seven other provinces and one territory to eventually follow suit before the federal government in 2005 legally changes the definition of marriage to include same-sex couples, in keeping with advice from the Supreme Court, to which the feds had referred the matter.
Chaoulli v. Quebec (Attorney General): Supreme Court rules that an outright ban on private medical care violates the right to security of the person.
Dr. Jacques Chaoulli faces media at a press conference in Montreal on Thursday, June 9, 2005. Chaoulli and his patient George Zeliotis argued that the ban on buying private insurance for health care infringed on CanadaÌs Charter of Rights and Freedoms as well as the Quebec Charter of Rights. The Supreme Court of Canada ruled that the Quebec ban on private insurance violates QuebecÌs charter of rights.(CP PHOTO/Ian Barrett)
Charkaoui v. Canada (Citizenship and Immigration). Supreme Court strikes down portion of anti-terrorism law that allowed the government to issue security certificates to detain without charge permanent residents or refugees suspected of being threats to national security.
The court rules that detaining individuals without allowing them or their lawyers to review the evidence against them was an infringement of the charter right to liberty. It also rules that forcing foreign nationals to wait 120 days for a review of a security certificate amounts to a violation of the charter's guarantee against arbitrary detention.
Adil Charkaoui stands in front of a protest banner as he takes part in a television interview outside the Supreme Court of Canada in Ottawa Wednesday June 14, 2006, for the second day of hearings on security certificates. Charkaoui, who was suspected by Canadian security agencies of being an al-Qaida sleeper agent and jailed on a security certificate, was released under strict conditions. (CP PHOTO/Tom Hanson)
R. v. Smickle. Ontario Superior Court of Justice rejects mandatory minimum three-year sentence for possession of a loaded firearm in the case of Leroy Smickle, who had been found taking a photo of himself holding a loaded gun, not his own, when his cousin's apartment was raided by police. Judge rules that a one-size-fits-all sentence violates the charter right not to be subjected to cruel and unusual punishment.
R. v. Hill. Ontario Superior Court of Justice strikes down section of the Criminal Code that allows repeat offenders to be designated "dangerous offenders" subject to indefinite incarceration. Judge rules that reverse onus on offender to prove he or she is not a dangerous offender violates the right to fundamental justice.
R. v. Telus Communications Co. Supreme Court extends privacy rights to text messaging.
Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401. Supreme Court strikes down Alberta's privacy legislation — under which the union had been banned from publishing photos, video of individuals crossing a picket line — as an infringement of freedom of expression.
Canada (Attorney General) v. Bedford. Supreme Court strikes down criminal provisions surrounding prostitution. Rules that the prohibitions on communication for the purpose of prostitution, living off the avails of prostitution, and keeping a common bawdy house endanger prostitutes' lives and, thus, violate their charter right to security of the person.
Terri-Jean Bedford flashes a victory sign as she speaks with the media after learning Canada's highest court struck down the country's prostitution laws at the Supreme Court of Canada in Ottawa Friday December 20, 2013. THE CANADIAN PRESS/Adrian Wyld
Carter v. Canada (Attorney General). Supreme Court strikes down the ban on medical assistance in dying as a violation of the charter right to life, liberty and security of the person. The court rules that assisted death should be available to clearly consenting, competent adults with “grievous and irremediable” medical conditions that are causing enduring suffering that they find intolerable.
Price Carter, left, son of Kay Carter, in photo in foreground, pauses for a moment during a news conference at British Columbia Civil Liberties in Vancouver, B.C., Monday, June, 6, 2016. Price and his sister Lee Carter, not shown, were speaking on the Supreme Court of Canada's death with dignity ruling. THE CANADIAN PRESS/Jonathan Hayward
R. v. Jordan. Supreme Court sets ceiling on the amount of time an accused must spend awaiting trial before charter right to a trial within a reasonable time is violated: 18 months for cases tried in provincial court, and 30 months for more serious cases tried in superior court. Ruling results in dozens of cases being stayed, leaves federal and provincial justice ministers scrambling to find ways to speed up trials before thousands more cases are tossed.

While some critics still rail about "judge-made law" and the charter usurping the supremacy of Parliament, Macfarlane says it hasn't lived up to the worst fears of those who believed 35 years ago that it would amount to "handing over the keys to the car to judges."

"The charter has produced a significant shift in power to the courts so I don't want to understate it," says Macfarlane.

"But the government wins two-thirds of charter cases at the Supreme Court. So it's not as if we can say the courts have completely taken over the policy-making authority of government."

A photo composite of the Supreme Court of Canada in Ottawa. THE CANADIAN PRESS/Lucas Timmons