General

40 Section 26: Existing Rights and Freedoms in Canada Continue

Provision

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.

Similar provisions

There are similar or related rights in the following international instruments binding on Canada: articles 2, 5(2) of the International Covenant on Civil and Political Rights.

See also the following international, regional and comparative law instruments that are not legally binding upon Canada but include Similar provisions: Ninth Amendment to the Constitution of the United States of America; article 29 of the American Convention on Human Rights; article 60 of the European Convention for the Protection Human Rights and Fundamental Freedoms.

Purpose

The purpose of this section is to ensure that any rights or freedoms not expressly spelled out in the Charter but which exist otherwise, are not extinguished because of that omission. It furthermore underscores the point that the Charter was intended to enlarge rights and freedoms and not to extinguish or restrict them, except as set out therein (R. v.Feist (1997) 203 A.R. 143 (AB P.C.)). Section 26 is to serve as a guide in interpreting other sections of the Charter and therefore, in and of itself, it cannot support a constitutional challenge (Canfield v. Prince Edward Island [1996] 2 P.E.I.R. 137 (PEI SC (TD))).

Analysis

1. Access to courts

The right of access to the courts is one of the existing rights to which this section refers. That right justifies any infringement on freedom of expression or peaceful assembly that might result from an order enjoining picketing at court houses (B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 SCR 214)

2. Freedom to contract

The right to enter into private contracts is among the rights to which this section refers. It was never intended that the entering into of such contracts would be subject to the Charter (Bhindi v. British Columbia Projectionists, Local 348 (1986), 29 D.L.R. (4th) 47 (BCCA)).

Among the freedoms to which this section refers is the freedom to determine, within the limits prescribed by law, the terms and provisions of contracts (Hsuen v. Mah (1986), 31 D.L.R. (4th) 199 (BCSC)).

3. Enjoyment of property

Common law protections of property rights are among the freedoms referred to by section 26. (Alberta (Justice and Attorney General) v. Echert, 2013 ABQB 314).

4. Canadian Bill of Rights

The rights set out in the Canadian Bill of Rights continue to exist. The Bill is a guide to the court in construing federal statutes (Hall v. Canada (Minister of Employment and Immigration [1983] O.J. No. 376 (ON H Ct J).

The Canadian Bill of Rights retains all force and effect, together with provincial human rights legislation. Because these quasi-constitutional instruments are drafted differently, they are susceptible of producing cumulative effects for the better protection of rights and freedoms. It is particularly so where they contain provisions not to be found in the Canadian Charter of Rights and Freedoms (Singh v. Minister of Employment and Immigration [1985] 1 SCR 177) (e.g., paragraph 1(a) – right to enjoyment of property; paragraph 2(a) – right to a fair hearing).

5. Law society rules

The powers of the law societies conferred by statute are not rights within the meaning of section 26. An example of the application of section. 26 is, in the context the right of a person not to be libeled by another by advertising or otherwise (Re Klein and Law Society of Upper Canada (1985) 50 OR (2d) 118 (ON Div Ct)).