The Future of the Charter of Rights and Freedoms

We asked three law professors, one from each law school in BC, to answer one question — Where do you see the Charter going and how do you see it influencing society in the next 35 years? — Here are their responses:

The Future of the Charter of Rights and Freedoms


Patricia Cochran is an assistant professor at the Faculty of Law, University of Victoria (@UVicLaw) where she teaches and researches constitutional law, evidence and legal theory. 

The Charter is the textual home for the constitutional protection of individual rights and freedoms. Over the 35 years since its entrenchment, much of its interpretation has been dedicated to working out the role of courts in modulating the balance between the rights of individuals and the constitutional authority of the state to make laws in the broader public interest. This intellectual framework for thinking about the Charter – individual rights vs. democratic legislatures – will always have an important role to play in a liberal democracy. 

However, many of the most pressing justice concerns facing Canadian society are complex problems with an undeniable collective component; they are problems that have deep historical context and implicate relationships beyond the individual’s relationship to the Canadian state. Among these complex problems are the challenges posed by climate change, deepening and persistent poverty for some communities in a wealthy society, and the building of respectful relations between Indigenous and settler communities. I suggest that the Charter will be useful to us in coming years and generations to the extent that it facilitates our collective engagement with these kinds of problems, as well as problems that speak more squarely to the state-citizen relationship.

Thinkers and commentators from many disciplines suggest that one way to imagine this possibility is to think directly about relationships as the key concept in constitutional rights, an approach advocated by thinkers from a wide variety of disciplines. This would include the relationship between individuals and the state laws that bind and affect them. It would also include relationships between the legal orders that claim to have authority over individuals. Moreover, this approach calls on us to question the constitutional relationships at stake when we talk about the natural environment. Focusing on relationships is useful in part because it opens Charter law to conversations about both substance and procedure. The quality of a relationship is judged, not only by the outcomes it produces, but by the nature of the interactions between the parties along the way. For its next 35 years, the Canadian Charter of Rights and Freedoms has the potential to help us build those respectful relationships, if we are able to draw out its wisdom in focusing on both the content of rights and the practices we engage in to uphold them.


Janna Promislow is an associate professor at Thompson Rivers University, Faculty of Law

Early critics of the Charter warned of the judicialization of politics. Each year, I see the critics’ concerns animated by the new crop of law students mostly in their 20s. These students are optimistic about what Charter rights signify and can achieve for Canadian society, but largely disinterested and egregiously under-informed about that other lawmaker − the legislature. For better or worse, the Charter influences politics not just directly but also through education about law, government and society in general. The required response is not a rejection of rights-based politics – that ship has sailed! Instead, educators need to instill increased sophistication around the structural limitations of Charter rights, institutional competencies, and more creative and pluralistic notions of the rule of law and law reform.

The structural limitations of our Charter are taking root. While the Supreme Court has boldly required significant positive action from government in response to its decisions in some areas (for example, in the realm of criminal law; e.g., R v Jordan, 2016 SCC 27advocates seeking recognition of social and economic rights appear to have hit a wall; e.g., Tanudjaja v Canada (AG), 2014 ONCA 852. Environmental advocates are calling for an amendment to add a right to a healthy environment to the Charter to overcome this wall (see David Boyd et al and the Bluedot campaign). The ability of any such amendment to deliver the desired results is, of course, debatable, especially in light of the limited impact of Charter rights on distributive justice. A similar wall is being confronted in relation to s. 35 Aboriginal rights. If Indigenous claimants succeed in establishing greater livelihood rights under s. 35, such developments may serve to delineate the distinctive historical and redistributive purposes of s. 35 rights more clearly from their Charter cousins.

Away from headlining issues and cases, the influence of the Charter continues its steady march into administrative realms and will continue into Indigenous contexts as self-government finally gains traction. Such developments will push the justification analysis to evolve beyond the Oakes test, an evolution begun by the Court in Doré and Loyola High School. Protecting constitutional rights through judicial review on a deferential standard is an admittedly challenging proposition, seemingly opposed to demanding rigour in the protection of constitutional rights. Nevertheless, a strong and distributed rights culture is the best direction forward to counteract the political inertia that potentially accompanies an over-reliance on the judiciary as the pinnacle of rights protection.


Debra Parkes is a professor at Peter A. Allard School of Law (@AllardLaw), The University of British Columbia and Chair in Feminist Legal Studies. 

After 35 years, the Charter remains popular among Canadians. In a recent poll, it was named the top Canadian symbol (ahead of the flag and hockey). Our entrenched Charter – and a judiciary that has grown comfortable in its role of enforcing it – has struck down laws prohibiting abortion and assisted suicide. Same-sex relationship recognition, including equal marriage, came to us through Charter decisions, with legislatures and Parliament compelled to follow. 

However, the existence of a “Charter culture” should not be taken for granted. There are recent examples from our own country and from south of the border of political leaders publicly undermining the role of the judiciary in interpreting and enforcing constitutional rights. These attacks often go hand in hand with populist fearmongering and the targeting of racialized others. How durable the Charter will be as a check on state power over the next 35 years depends on the culture that is fostered in the judiciary, the Bar, the media, and among legislators and the broader society. 

Meanwhile, deep inequality persists in Canada. The gap between the rich and the poor is pronounced and growing, with nearly five million Canadians living in poverty. The mass incarceration of Indigenous people is getting worse, not better. The gender wage gap has widened in recent years. The earth’s climate is changing at an alarming rate and our governments are reluctant to take meaningful action to address it.

Looking ahead to the next 35 years, I am interested in the unfinished business of the Charter. Recent decisions have closed the door on claims that state failure to meaningfully address poverty and homelessness are rights issues. With few exceptions, our courts have failed to grapple with systemic racism. Young Canadians, in particular, are demanding action on the environment and see it as a rights issue. It is heartening that we have seen a willingness on the Supreme Court to revisit earlier Charter precedents to account for societal and legal change. To be sure, these problems do not have easy solutions in the courts, but seeing them as issues of rights changes the conversation and requires state action to address them.