Concept 1: The Constitution Act Background

Introduction to Background

Introduction to the Constitution Act, 1982

Canada has a long history of protecting the rights of minorities and striving towards an egalitarian society. Respect for cultural and language differences is an aspect of our constitutional history. The Canadian Charter of Rights and Freedoms is the current legal manifestation of this long tradition.

A Brief History of Canada's Constitution and the Canadian Charter of Rights and Freedoms

Prior to 1982, Canada's constitution, the British North America Act of 1867, could only be modified by the British Parliament. In addition, there was nothing in place to restrict the government from passing discriminatory legislation or from violating an individual's fundamental rights or freedomsi. Determined to change this, former Prime Minister Pierre Elliot Trudeau, among others, negotiated to bring the constitution home (i.e. to Canada), and also entrench within it, the Canadian Charter of Rights and Freedoms. On April 17, 1982, in the presence of hundreds of Canadian spectators at Parliament Hill, Queen Elizabeth the II signed the Constitution Act, 1982, making Canada a fully sovereign nation, and enshrining the Charter as the highest law in Canada.

How does the Charter of Rights and Freedoms Apply to Students and Teachers?

The Charter regulates the relationship between governments and individuals, ensuring that the public's basic rights are protected. It applies to all matters of the federal, provincial and territorial governments and requires that Canadian courts and governments take the Charter into account when deciding on issues that affect people's rights and freedoms.

Since departments of education, school boards, and school authorities are governed by provincial legislatures, any laws, policies and practices that affect education must be consistent with the Charter. Schools must, therefore, take care to protect the Charter rights and freedoms of their students and staff or risk being subject to Charter challenges.

How should The Canadian Charter of Rights and Freedoms be interpreted?

According to the Supreme Court of Canada, the Charter is a "purposive document," which means it must be interpreted in light of its overall purpose and the rights and freedoms which the section was designed to protect. This purposive approach means that Charter interpretations are more generous rather than legalistic because they take into consideration a broad range of factors, such as context and individual circumstances.

As stated by Chief Justice Dickson in the case R. v. Big M Drug Mart:

[T]he purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charterii.

Based on this clear directive to pursue a generous and purposive approach, students' and teachers' Charter rights should be interpreted in a manner that ensures the protection of basic rights within the school context.

  1. Funston, B.W. & Meehan E. (2003). Canada's Constitutional Law In a Nutshell. 3rd Ed. Toronto, ON: Thomson Canada Limited at 165.
  2. R. V. Big M Drug Mart [1985] 1 S.C.R. 295 18 344.

Disclaimer - The resources presented in this learning tool, the Charter in the Classroom: Students, Teachers and Rights (CC: STAR) are included only to assist in the study of the Canadian Charter of Rights and Freedoms. They do not necessarily represent an endorsement of a position or issue, opinion or view of its contributors, the University of Ontario Institute of Technology, Inukshuk Wireless, the Ontario Justice Education Network, the Canadian Civil Liberties Education Trust or any of the people, organizations, or institutions affiliated with it.