What Are Charter Values?

This is an excerpt from my forthcoming article The Doré Duty: Fundamental Rights in Public Administration, to appear shortly in the Canadian Bar Review.

A persistent concern about Charter values is that they are amorphous and ill-defined.[1] This concern has sometimes animated arguments that Doré leads to under-powered judicial review of Charter-infringing state action. This may or may not be so. My concern in this Part is with a different argument, namely that Charter values, because they are amorphous and ill-defined, should play no role, or a very limited role, in Canadian public law.

            However, properly understood, Charter values are an unobjectionable feature of the legal landscape of Canada. They are simply “those values that underpin each [Charter] right and give it meaning.”[2] In this respect, Charter values are no different from the unwritten constitutional principles which “form part of the context and backdrop to the Constitution’s written terms.”[3] Unwritten principles inform the “interpretation” of specific provisions of the Constitution’s text and the “structural doctrines” necessary for the “coherence” of the constitutional architecture.[4] For example, the unwritten principle of the protection of minorities finds expression in “a number of specific constitutional provisions protecting minority language, religion and education rights.”[5] Put another way, Charter values are general principles which find their expression in specific textual provisions.

            The juridical structure of Charter values is, therefore, a familiar one. There are many examples in Canadian law of general principles being manifested in specific ways. This occurs even in private law, where a variety of specific duties on contracting parties are derived from the general principle of good faith.[6] The specific rules and doctrines of administrative law can, similarly, be understood as manifestations of overarching values.[7]

            Perhaps the best example in Canadian public law is the Honour of the Crown, which functions as a general principle in respect of Crown-Indigenous relations. The principle is “enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal and treaty rights”:[8] section 35 is a specific manifestation of the Honour of the Crown as, indeed, is the non-derogation clause in section 25. So too is the duty to consult “grounded” in the Honour of the Crown.[9] Recent jurisprudence suggesting that reconciliation is an interpretive principle when discerning the meaning of statutory provisions is a further instance of the Honour of the Crown being given specific application.[10]

            Another example is the flourishing of linguistic minority communities—“promoting the development of official language minority communities”[11]—a principle which finds expression in various provisions of the Canadian Constitution: section 133 of the Constitution Act, 1867, recognizing the official status of French and English; section 23 of the Charter, setting out the rights of minority language speakers; and sections 16 to 20 of the Charter, providing specific guarantees for French-language speakers in the province of New Brunswick. These provisions treat minority language speakers as a group worthy of concern and respect,[12] specific manifestations of a general commitment to the flourishing of linguistic minority communities.  

            In each of these instances, there is a general principle—such as good faith, or the Honour of the Crown or the flourishing of linguistic minority communities—which finds specific manifestations in textual provisions or judicially developed doctrines.

            Charter values share the same juridical structure as these phenomena. For instance, Professor Hogg has conducted an exhaustive analysis in respect of equality as a Charter value, demonstrating how it finds specific manifestation throughout the textual provisions of the document.[13] Similarly, the Charter values the Supreme Court has recognized, “such as liberty, human dignity, equality, autonomy, and the enhancement of democracy,”[14] manifest themselves in various specific provisions. Liberty is a Charter value with specific manifestations in sections 2 (fundamental freedoms), 7 (protection of liberty), 8 (freedom from unreasonable searches and seizures), 9 (protection from arbitrary detention), 10 and 11 (rights in relation to arrests and criminal charges). Democracy finds expression in the fundamental freedoms, e.g., section 3’s guarantee of the right to vote and (perhaps) the mobility rights in section 6 that allow an unhappy citizen to “exit” a province or the federation. Human dignity is protected by the variety of provisions in section 11 giving rights to criminal accused and, most notably, by the protection against cruel and unusual punishment or treatment (section 12).

[1] See generally Matthew Horner, “Charter Values: The Uncanny Valley of Canadian Constitutionalism” (2014) 67 SCLR (2d) 361. See also Ontario Nurses’ Association v Participating Nursing Homes, 2021 ONCA 148 at paras 152–156, Huscroft JA, dissenting.

[2] Loyola, supra note 5at para 36.

[3] Toronto (City) v Ontario (Attorney General), 2021 SCC 34 at para 50 [Toronto v Ontario].

[4] Ibid at paras 55–56.

[5] Reference re Secession of Quebec, [1998] 2 SCR 217 at paras 79-80, 161 DLR (4th) 385.

[6] Bhasin v Hrynew, 2014 SCC 71. See e.g.CM Callow Inc v Zollinger, 2020 SCC 45.

[7] Bernard v Canada (Revenue Agency), 2015 FCA 263 at para 18; Paradis Honey Ltd v Canada, 2015 FCA 89 at para 138; Plaintiff M1-2021 v Minister for Home Affairs, [2022] HCA 17 at para 73. See generally Paul Daly, Understanding Administrative Law in the Common Law World (Oxford: Oxford University Press, 2021).

[8] Clyde River (Hamlet) v Petroleum Geo‑Services Inc, 2017 SCC 40 at para 19.

[9] Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 32.

[10] AltaLink Management Ltd v Alberta (Utilities Commission), 2021 ABCA 342, Feehan JA, concurring [AltaLink].

[11] Conseil scolaire francophone de la Colombie‑Britannique v British Columbia, 2020 SCC 13 at para 3. See also Conseil scolaire francophone de la Colombie‑Britannique v British Columbia, 2013 SCC 42 at para 56; Reference re Secession of Quebec, supra note 18 at paras 79–80.

[12] See also Paul Daly, “Why Write Statutes Which Some People Cannot Read?” (2020) 99 SCLR(2d)409.

[13] Peter W Hogg, “Equality as a Charter Value in Constitutional Interpretation” (2003)20 SCLR (2d) 113.

[14] Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 88.

This content has been updated on June 22, 2023 at 16:59.