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 provisions in the following international instruments binding on Canada: article 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

Treatment of section 26 in jurisprudence is sparse and generally quite brief. In a recent decision regarding the expropriation of land, the Supreme Court of Canada noted that the Charter has never been the sole source of Canadians’ rights. Rather, as section 26 confirms, the common law also affords protections of individual liberty and the scope of these protections is independent of the Charter (Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36).

A lower court decision noted that section 26 ensures that any rights or freedoms not expressly included in the Charter, but which exist otherwise, are not extinguished because of that omission. In this sense, section 26 underscores that the Charter was intended to enlarge rights and freedoms, not to restrict or eliminate them (R. v. Feist (1997), 203 A.R. 143 (ABPC)).

Another lower court decision cited Hogg’s reference to section 26 as “a cautionary provision, included to make clear that the Charter is not to be construed as taking away any existing undeclared rights or freedoms”, but not as having the effect of constitutionalizing such additional rights or freedoms (Peter W. Hogg, Constitutional Law of Canada, Fifth Edition (2007) at §36:32, quoted in Fraser Health Authority v. Jongerden, 2013 BCSC 986 at paragraph 164). Courts have emphasized that the recognition of other rights and freedoms under section 26 does not itself give rise to further constitutional rights (see e.g., Hudson v. Canada (Attorney General), 2007 SKQB 455, affirmed 2009 SKCA 108, leave to appeal to the SCC refused, 359 Sask. R. 317 (note); and Canfield v. Prince Edward Island (1998), 158 D.L.R. (4th) 125 (PEICA)).

Analysis

1. Application of the Charter

Section 26 has occasionally played a minor role in evaluating the application of the Charter. One decision has treated the recognition of a right or freedom under section 26 pertaining to the private, non-governmental sphere – notably the right to enter into a private contract – as reinforcing analysis that the Charter does not have application to that sphere. This consideration thus played an adjunct to analysis under section 32 of the Charter (Bhindi v. British Columbia Projectionists, Local 348 (1986), 29 D.L.R. (4th) 47 (BCCA), leave to appeal to the SCC refused, [1986] S.C.C.A. No. 295).

Similarly, the consideration that a legal power was conferred by statute and was not a right or freedom seen as encompassed by section 26 – in that case, the power of law societies to regulate their members – reinforced analysis that the power was subject to the Charter (Re Klein and Law Society of Upper Canada (1985), 50 O.R. (2d) 118 (ON Div. Ct.), per Henry J., dissenting, but not on this point).

2. Limits on Charter rights and freedoms

Section 26 also has occasionally been referred to in analysis on limits on Charter rights and freedoms. For instance, an appellate court invoked a right it viewed as encompassed by section 26 – the right of access to the courts – in finding a justification for a limit, under section 1 of the Charter, on a Charter freedom. The court noted that the right of access to the courts was a key aspect of the rule of law that helped to protect other rights and freedoms and suggested the right would help justify a limit on freedom of expression and peaceful assembly caused by an injunction against picketing courthouses (Re B.C.G.E.U. (1985), 20 D.L.R. (4th) 399 (BCCA), affirmed without reference to section 26, [1988] 2 S.C.R. 214).

Another appellate ruling has emphasized, in response to an argument that a right recognized under section 26 could help limit a Charter right, that any such limits must be considered under section 1 Charter analysis (Osborne v. Canada (Treasury Board) (1988), 52 D.L.R. (4th) 241 (FCA), affirmed without reference to section 26, [1991] 2 S.C.R. 69).

3. Particular rights and freedoms recognized under section 26

As noted, the rights and freedoms that courts have recognized as being referred to by section 26 include the right to enter into a private contract (Bhindi, supra) and the right of access to the courts (B.C.G.E.U., supra). Among other rights that have been discussed in connection with section 26 are a public right to the political neutrality of the public service (Osborne, supra, although it is not entirely clear from the wording of the reasons that the court adopted this as a right under section 26 in addition to being a constitutional convention) and common law property rights (Alberta (Justice and Attorney General) v. Echert, 2013 ABQB 314). There has been some consideration of whether a non-constitutionally protected right to possess firearms might be encompassed within section 26, but no general constitutional right of this nature is recognized in Canada (see R. v. Montague, 2007 CarswellOnt 7613 (Sup. Ct.) and Hudson, supra; see also on the general point of firearms rights under the Charter, R. v. Wiles, [2005] 3 S.C.R. 895).

Section 26 also notably has been cited for the continued force and effect of rights recognized under the Canadian Bill of Rights (Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at paragraph 4, per Wilson J., and paragraphs 84-5, per Beetz J.; for further discussion of the post-Charter relevance and scope of Bill of Rights protections, see Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40).

The content is current up until 2023-07-31.