Section 26 of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms |
---|
Part of the Constitution Act, 1982 |
Preamble |
Guarantee of Rights and Freedoms |
1 |
Fundamental Freedoms |
2 |
Democratic Rights |
3, 4, 5 |
Mobility Rights |
6 |
Legal Rights |
7, 8, 9, 10, 11, 12, 13, 14 |
Equality Rights |
15 |
Official Languages of Canada |
16, 16.1, 17, 18, 19, 20, 21, 22 |
Minority Language Education Rights |
23 |
Enforcement |
24 |
General |
25, 26, 27, 28, 29, 30, 31 |
Application |
32, 33 |
Citation |
34 |
Section 26 of the
The section reads:
26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.
Purpose
As constitutional scholar Peter Hogg notes, this section is analogous to the Ninth Amendment to the United States Constitution, which reads,
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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
On one of its websites, 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.[3]
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
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.[5] Hence, while the Charter in and of itself does not repeal rights, legislatures still can.[6] Thus s. 26 is a much weaker defence of rights than the superficially similar protection of unenumerated rights in the American Bill of Rights.[7]
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
References
- ^ Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 739.
- ^ Hogg, p. 984.
- ^ "Guide to the Canadian Charter of Rights and Freedoms". Human Rights Program, Canadian Heritage. Archived from the original on 11 March 2007. Retrieved 8 August 2005.
- ^ Gibson, Dale. The Law of the Charter: General Principles. (The Carswell Company Limited, 1986), p. 73.
- ^ "SECTION 26". Canadian Legal Information Institute. June 1996. Archived from the original on 3 February 2007.
- ^ Hogg, p. 739.
- ^ Griswold v. Connecticut, 381 U.S. 479 at 493 per Goldberg, J. (1965)
- ^ Mandel, Michael. The Charter of Rights and the Legalization of Politics in Canada. Revised, Updated and Expanded Edition. (Toronto: Thompson Educational Publishing, Inc., 1994), pp. 354-356.