Section Twenty-six of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Twenty-six of the Canadian Charter of Rights and Freedoms, like other provisions within the section 25
to 31
bloc, provides a guide in interpreting how the Charter
should affect Canadian
society. The section's particular role is to address rights
not covered by or mentioned in the Charter.
The section reads:
notes, this section is analogous to the Ninth Amendment
to the United States Constitution
, which reads,
In other words, section 26 confirms that rights not within the Charter are nevertheless as real as they would be had the Charter never been enacted. According to Hogg, the purpose of this "cautionary provision" was to confirm pre-Charter rights will persist. Some rights that predate the Charter but cannot be found within it are anchored in the Canadian Bill of Rights
and its provincial counterparts, as well as in the common law
. The rights to "enjoyment of property
" and to have one's rights and obligations determined through a fair hearing and through fundamental justice
, are found in the Canadian Bill of Rights but are not duplicated in the Charter, and thus fall under the category of rights referred to in section 26. A notable case in which section 26 and the Bill of Rights were discussed is Singh v. Minister of Employment and Immigration
(1985).
On one of its website
s, the government of Canada claims there was also a more forward-looking purpose for section 26, namely to allow non-Charter rights to continue being created. Rights not included in the Charter but established in the future by Parliament, a provincial legislature, or in international law
, will be valid.
What rights are not afforded any recognition by section 26 has also been discussed. In 1986, author Dale Gibson argued that the rights referred to in section 26 are positive rights
belonging to private individuals, as opposed to politician
s and bureaucrat
s acting on behalf of the government. The reason for this was that politicians and bureaucrats acting on behalf of the government could claim that their "freedom to discriminate" could be a freedom protected by section 26. This would, in turn, lead to limits on the Charter rights of private individuals being discriminated against, which would render these Charter rights "meaningless."
Still, section 26 is not a means to ensure that all rights forgotten or neglected by the drafters of the Charter are automatically endowed with the same status as rights specifically named in the Charter. This was heavily indicated in 1985, by both a Federal Court
and a Prince Edward Island
court. In the case Le Groupe des Eleveurs de Volailles et al. v. Canadian Chicken Marketing Agency, the Federal Court ruled that non-Charter rights are not enhanced by section 26, and in R. v. MacAusland, the Prince Edward Island court ruled that non-Charter rights are not constitutionally guaranteed, although they are not limited by the Charter either. Hence, while the Charter in and of itself does not repeal rights, legislatures still can. Thus s. 26 is a much weaker defence of rights than the superficially similar protection of unenumerated rights in the American Bill of Rights.
s by Native Canadian
s, who felt this clause did not sufficiently protect aboriginal rights, it was abandoned and section 35
of the Constitution Act, 1982
, as well as a stronger section regarding the Charter and aboriginal rights, section 25
, were added to the Constitution of Canada
instead.
Section Twenty-five of the Canadian Charter of Rights and Freedoms
Section Twenty-five of the Canadian Charter of Rights and Freedoms is the first section under the heading "General" in the Charter, and like other sections within the "General" sphere, it aids in the interpretation of rights elsewhere in the Charter...
to 31
Section Thirty-one of the Canadian Charter of Rights and Freedoms
Section Thirty-one of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada, which clarifies that the Charter does not increase the powers of either the federal government or the legislatures of the provinces of Canada...
bloc, provides a guide in interpreting how the Charter
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
should affect Canadian
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
society. The section's particular role is to address rights
Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
not covered by or mentioned in the Charter.
The section reads:
Purpose
As constitutional scholar Peter HoggPeter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
notes, this section is analogous to the Ninth Amendment
Ninth Amendment to the United States Constitution
The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...
to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, which reads,
In other words, section 26 confirms that rights not within the Charter are nevertheless as real as they would be had the Charter never been enacted. According to Hogg, the purpose of this "cautionary provision" was to confirm pre-Charter rights will persist. Some rights that predate the Charter but cannot be found within it are anchored in the Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
and its provincial counterparts, as well as in the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. The rights to "enjoyment of property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
" and to have one's rights and obligations determined through a fair hearing and through fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
, are found in the Canadian Bill of Rights but are not duplicated in the Charter, and thus fall under the category of rights referred to in section 26. A notable case in which section 26 and the Bill of Rights were discussed is Singh v. Minister of Employment and Immigration
Singh v. Minister of Employment and Immigration
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177-Background:Between 1977 and 1980, Harbhajan Singh and six other Sikh foreign nationals attempted to claim convention refugee status under the Immigration Act, 1976 on the basis that they had a well-founded fear of persecution in...
(1985).
On one of its website
Website
A website, also written as Web site, web site, or simply site, is a collection of related web pages containing images, videos or other digital assets. A website is hosted on at least one web server, accessible via a network such as the Internet or a private local area network through an Internet...
s, the government of Canada claims there was also a more forward-looking purpose for section 26, namely to allow non-Charter rights to continue being created. Rights not included in the Charter but established in the future by Parliament, a provincial legislature, or in international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, will be valid.
What rights are not afforded any recognition by section 26 has also been discussed. In 1986, author Dale Gibson argued that the rights referred to in section 26 are positive rights
Negative and positive rights
Philosophers and political scientists make a distinction between negative and positive rights . According to this view, positive rights permit or oblige action, whereas negative rights permit or oblige inaction. These permissions or obligations may be of either a legal or moral character...
belonging to private individuals, as opposed to politician
Politician
A politician, political leader, or political figure is an individual who is involved in influencing public policy and decision making...
s and bureaucrat
Bureaucrat
A bureaucrat is a member of a bureaucracy and can comprise the administration of any organization of any size, though the term usually connotes someone within an institution of a government or corporation...
s acting on behalf of the government. The reason for this was that politicians and bureaucrats acting on behalf of the government could claim that their "freedom to discriminate" could be a freedom protected by section 26. This would, in turn, lead to limits on the Charter rights of private individuals being discriminated against, which would render these Charter rights "meaningless."
Still, section 26 is not a means to ensure that all rights forgotten or neglected by the drafters of the Charter are automatically endowed with the same status as rights specifically named in the Charter. This was heavily indicated in 1985, by both a Federal Court
Federal Court of Canada
The Federal Court of Canada was a national court of Canada that heard some types of disputes arising under the central government's legislative jurisdiction...
and a Prince Edward Island
Prince Edward Island
Prince Edward Island is a Canadian province consisting of an island of the same name, as well as other islands. The maritime province is the smallest in the nation in both land area and population...
court. In the case Le Groupe des Eleveurs de Volailles et al. v. Canadian Chicken Marketing Agency, the Federal Court ruled that non-Charter rights are not enhanced by section 26, and in R. v. MacAusland, the Prince Edward Island court ruled that non-Charter rights are not constitutionally guaranteed, although they are not limited by the Charter either. Hence, while the Charter in and of itself does not repeal rights, legislatures still can. Thus s. 26 is a much weaker defence of rights than the superficially similar protection of unenumerated rights in the American Bill of Rights.
History
The content of section 26 first appeared in the October 1980 draft of the Charter (the earliest version), but also stated the Charter should not be construed as denying the existence of "any rights or freedoms that pertain to the native peoples of Canada." After dramatic protestProtest
A protest is an expression of objection, by words or by actions, to particular events, policies or situations. Protests can take many different forms, from individual statements to mass demonstrations...
s by Native Canadian
Aboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
s, who felt this clause did not sufficiently protect aboriginal rights, it was abandoned and section 35
Section Thirty-five of the Constitution Act, 1982
Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...
of the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
, as well as a stronger section regarding the Charter and aboriginal rights, section 25
Section Twenty-five of the Canadian Charter of Rights and Freedoms
Section Twenty-five of the Canadian Charter of Rights and Freedoms is the first section under the heading "General" in the Charter, and like other sections within the "General" sphere, it aids in the interpretation of rights elsewhere in the Charter...
, were added to the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
instead.