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The Charter of Rights and Freedoms — and values?

8 8 5
09.11.2018

Canadians often refer to their Charter rights and freedoms, but not as much to their Charter values. In recent years, though, Charter values have gained traction in Canadian law. They now play a key role in how the Charter is understood — but there is reason for concern.

Charter values rose to prominence in a case in which the public regulator of lawyers in Quebec disciplined a lawyer for sending a scathing letter to a judge after a court appearance. The lawyer argued that the sanction unduly limited his freedom of expression under the Charter.

In 2012, the Supreme Court of Canada upheld the sanction and, in so doing, explained how bodies to which the state delegates decision-making powers should proceed when their decisions impact “Charter values.” The key question is whether the actions of these bodies strike a proportional balance between the achievement of their legislative mandate and the infringement of the Charter value. This test applies only to administrative decision-makers — the myriad public bodies that the state empowers to decide countless issues. From boards to tribunals to commissions to agencies, these bodies play a major role in the lives of Canadians.

Criticism of Charter values is intensifying among lawyers, professors and judges. These values are not found in the Charter, which refers only to rights and freedoms. This means it is up to courts and administrative decision-makers to identify Charter values and define them. While a set of values certainly animates the Charter and inspired the text of the document as we know it today, the Charter guarantees only the rights and freedoms that it contains. The rise of Charter values is viewed by some as tantamount to illegitimate constitutional........

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