Canadian Charter of Rights and Freedoms
The
Canadian Charter of Rights and Freedoms (also known as
The Charter of Rights and Freedoms or simply The
Charter) is a
bill of rights entrenched in the
Constitution of Canada. It forms the first part of the
Constitution Act, 1982. The
Charter is intended to protect certain
political and
civil rights of people in
Canada from the policies and actions of all levels of
government. It is designed to unify Canadians around a set of principles that embody those rights.
The
Charter was preceded by the
Canadian Bill of Rights, which was introduced by the government of
John Diefenbaker in 1960. However, the
Bill of Rights was only a federal
statute, rather than a constitutional document. Therefore, it was limited in scope and was easily amendable. This motivated some within government to improve rights protections in Canada. The movement for
human rights and freedoms that emerged after
World War II also wanted to entrench the principles enunciated in the
Universal Declaration of Human Rights.
[Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, page 689.] Hence,
Prime Minister Pierre Trudeau's government enacted the
Charter in 1982.
One of the most notable effects of the adoption of the
Charter was to greatly expand the scope of
judicial review, because the
Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the
Bill of Rights. The
courts, when confronted with violations of
Charter rights, have struck down unconstitutional statutes or parts of statutes, as they did when
Canadian case law was primarily concerned with resolving issues of
federalism. However, the
Charter granted new powers to the courts to enforce remedies that are more creative and to exclude more evidence in trials. These powers are greater than what was typical under the
common law and under a system of government that, influenced by Canada's mother country the
United Kingdom, was based upon
Parliamentary supremacy. As a result, the
Charter has attracted both broad support from a majority of the Canadian electorate and criticisms by opponents of increased
judicial power.
Under the
Charter, persons physically present in Canada have numerous civil and political rights. Most of the rights can be exercised by any legal person, including a corporation,
[Hogg, Constitutional Law of Canada. 2003 Student Ed., pages 741-742] but a few of the rights belong exclusively to natural persons or to
citizens of Canada. The rights are enforceable by the courts through
section 24 of the
Charter, which allows courts discretion to award remedies to those whose rights have been denied. This section also allows courts to exclude evidence in trials if the evidence was acquired in a way that conflicts with the
Charter and might damage the reputation of the justice system.
Section 32 confirms that the
Charter is binding on the federal government, the territories under its authority, and the provincial governments.
The rights and freedoms enshrined in the
Charter include:
fundamental freedoms (
section 2), namely
freedom of religion,
freedom of thought,
freedom of expression and
freedom of the press,
freedom of peaceful assembly, and
freedom of association.:
democratic rights: generally, the right to participate in political activities and the right to a
democratic form of government:::
Section 3: the right to
vote and to be eligible to serve as member of a
legislature.::
Section 4: a maximum duration of legislatures is set at five years.::
Section 5: an annual sitting of legislatures is required as a minimum.:
mobility rights: (
section 6): the right to enter and leave Canada, and to move to and take up residence in any province, or to reside outside Canada.:
legal rights: rights of people in dealing with the justice system and law enforcement, namely:::
Section 7: life, liberty, and security of the person.::
Section 8: freedom from unreasonable
search and seizure.::
Section 9: freedom from arbitrary detention.::
Section 10: rights on arrest or detention, including the right to retain a lawyer and to be informed of that right.::
Section 11: rights in criminal and penal matters such as the right to be
presumed innocent until proven guilty.::
Section 12: freedom from
cruel and unusual punishment.::
Section 13: rights not to incriminate oneself.::
Section 14: rights to an interpreter in a court proceeding.:
equality rights: (
section 15): equal treatment before and under the law, and equal protection and benefit of the law without discrimination.:
language rights: generally, the right to use either the
English or
French language in communications with Canada's federal government and certain provincial governments. Specifically, the language laws enshrined in the
Charter include:::
Section 16: English and French are the official languages of Canada and
New Brunswick.::
Section 16.1: the English and French-speaking communities of New Brunswick have equal rights to
educational and
cultural institutions.::
Section 17: the right to use either official language in
Parliament or the New Brunswick legislature.::
Section 18: the statutes and proceedings of Parliament and the New Brunswick legislature are to be printed in both official languages.::
Section 19: both official languages may be used in federal and New Brunswick courts.::
Section 20: the right to communicate with and be served by the federal and New Brunswick governments in either official language.::
Section 21: other constitutional language rights outside the Charter regarding English and French are sustained.::
Section 22: existing rights to use languages besides English and French are not affected by the fact that only English and French have language rights in the
Charter. (Hence, if there are any rights to use
Aboriginal languages anywhere they would continue to exist, though they would have no direct protection under the
Charter.):
minority language education rights: (
Section 23): rights for certain citizens belonging to French or English-speaking minority communities to be educated in their own language.
These rights are generally subject to the
limitations clause (
section 1) and the
notwithstanding clause (
section 33). The limitations clause in section 1 allows governments to justify certain infringements of
Charter rights. Every case in which a court discovers a violation of the
Charter would therefore require a section 1 analysis to determine if the law can still be upheld. Infringements are upheld if the purpose for the government action is to achieve what would be recognized as an urgent or important objective in a free society, and if the infringement can be "demonstrably justified." Section 1 has thus been used to uphold laws against objectionable conduct such as
hate speech (e.g., in
R. v. Keegstra) and
obscenity (e.g., in
R. v. Butler). Section 1 also confirms that the rights listed in the
Charter are guaranteed.
The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7–15 for up to five years, subject to renewal. The Canadian federal government has never invoked it, and some have speculated that its use would be politically costly. In the past, the notwithstanding clause was invoked routinely by the province of
Quebec (which did not support the enactment of the
Charter but is subject to it nonetheless). The provinces of
Saskatchewan and
Alberta have also invoked the notwithstanding clause, to end a
strike and to protect an exclusively
heterosexual definition of marriage, respectively. The territory of Yukon also passed legislation once that invoked the notwithstanding clause, but the legislation was never proclaimed in force.
[Library of Parliament, Parliamentary Information and Research Service, The Notwithstanding Clause of the Charter, prepared by David Johansen, 1989, as revised May 2005. Accessed August 7, 2006.]Other sections help clarify how the
Charter works in practice. These include,:
Section 25, which states that the
Charter does not derogate existing Aboriginal rights and freedoms. Aboriginal rights, including treaty rights, receive more direct constitutional protection under
section 35 of the
Constitution Act, 1982.:
Section 26, which clarifies that other rights and freedoms in Canada are not invalidated by the
Charter.:
Section 27, which requires the
Charter to be interpreted in a
multicultural context.:
Section 28, which states all
Charter rights are guaranteed equally to men and women.:
Section 29, which confirms the rights of
religious schools are preserved.:
Section 30, which clarifies the applicability of the
Charter in the territories.:
Section 31, which confirms that the
Charter does not extend the rights of legislatures.
Finally, section 34 states that the first 34 sections of the
Constitution Act, 1982 may be collectively referred to as the
"Canadian Charter of Rights and Freedoms".
Many of the rights and freedoms that are protected under the
Charter, including the rights to
freedom of speech,
habeas corpus and the
presumption of innocence,
[ "Sources of Canadian Law", Department of Justice Canada. URL accessed on March 20, 2006. ] have their roots in a set of Canadian laws and legal precedents sometimes known as the
Implied Bill of Rights. Many of these rights were also included in the
Canadian Bill of Rights, which the
Canadian Parliament enacted in 1960. However, the
Canadian Bill of Rights had a number of shortcomings. Unlike the
Charter, it was an ordinary Act of Parliament, which could be amended by a simple majority of Parliament, and it was applicable only to the federal government. The courts also chose to interpret the
Bill of Rights conservatively, only on rare occasions applying it to find a contrary law inoperative. This came as a disappointment to
liberals. The
Bill of Rights did not contain all of the rights that are now included in the
Charter, omitting, for instance, the
right to vote and
freedom of movement within Canada. Neither the
Canadian Bill of Rights nor the Implied Bill of Rights established
official bilingualism. This was first established on the federal level by the
Official Languages Act in 1969. New Brunswick, having its own large French-speaking minority, also adopted official bilingualism by statute that year and would strengthen this new policy by agreeing to its inclusion in the
Charter.
The centennial of
Canadian Confederation in 1967 aroused greater interest within the government in constitutional reform. Such reforms would include improving safeguards of rights, as well as
patriation of the Constitution, meaning the
British Parliament would no longer have to approve
constitutional amendments. Subsequently,
Attorney General Pierre Trudeau appointed law professor
Barry Strayer to research a potential bill of rights. While writing his report, Strayer consulted with a number of notable legal scholars, including
Walter Tarnopolsky. Strayer's report advocated a number of ideas that were later incorporated into the
Charter, including protection for language rights. Strayer also advocated excluding economic rights. Finally, he recommended allowing for limits on rights. Such limits are included in the
Charters limitation and notwithstanding clauses.[Strayer, Barry L. "My Constitutional Summer of 1967", ]Reflections on the Charter
, Department of Justice Canada. URL accessed on March 18, 2006. In 1968, Strayer was made the Director of the Constitutional Law Division of the Privy Council Office and in 1974 he became Assistant Deputy Minister of Justice. During those years, Strayer played a role in writing the bill that was ultimately adopted.
Meanwhile, Trudeau, who had become Liberal leader and prime minister in 1968, still very much wanted a constitutional bill of rights. The federal government and the provinces discussed creating one during negotiations for patriation, which resulted in the Victoria Charter in 1971. This never came to be implemented. However, Trudeau continued with his efforts to patriate the Constitution, and promised constitutional change during the 1980 Quebec referendum. He would succeed in 1982 with the passage of the Canada Act 1982. This enacted the Constitution Act, 1982
.The inclusion of a charter of rights in the Constitution Act
was a much-debated issue. Trudeau spoke on television in October 1980 [1], and announced his intention to constitutionalize a bill of rights that would include fundamental freedoms, democratic guarantees, freedom of movement, legal rights, equality and language rights. He did not want a notwithstanding clause. While his proposal gained popular support, provincial leaders opposed the potential limits on their powers. The federal Progressive Conservative opposition feared liberal bias among judges, should courts be called upon to enforce rights. Additionally, the British Parliament cited their right to uphold Canada's old form of government. At a suggestion of the Conservatives, Trudeau's government thus agreed to a committee of Senators and MPs to further examine the bill of rights as well as the patriation plan. During this time, 90 hours were spent on the bill of rights alone, all filmed for television, while civil rights experts and interest groups put forward their perceptions on the Charters flaws and omissions and how to remedy them. As Canada had a parliamentary system of government, and as judges were perceived not to have enforced rights well in the past, it was questioned whether the courts should be named as the enforcers of the
Charter, as Trudeau wanted. Conservatives argued that elected politicians should be trusted instead. It was eventually decided that the responsibility should go to the courts. At the urging of
civil libertarians, judges could even now exclude evidence in trials if it was acquired in breach of
Charter rights in certain circumstances, something the
Charter was not originally going to provide for. As the process continued, more features were added to the
Charter, including equality rights for people with disabilities, more sex equality guarantees and recognition of Canada's
multiculturalism. The limitations clause was also reworded to focus less on the importance of parliamentary government and more on justifiability of limits in free societies; the latter logic was more in line with rights developments around the world after World War II.
[Weinrib, Lorraine Eisenstat. "Trudeau and the Canadian Charter of Rights and Freedoms: A Question of Constitutional Maturation." In Trudeau's Shadow: The Life and Legacy of Pierre Elliott Trudeau. Edited by Andrew Cohen and JL Granatstein. Vintage Canada, 1998, pages 269-272.]In its decision in the
Patriation Reference (1981), the
Supreme Court of Canada had ruled there was a tradition that some provincial approval should be sought for constitutional reform. As the provinces still had doubts about the
Charters merits, Trudeau was forced to accept the notwithstanding clause to allow governments to opt out of certain obligations. The notwithstanding clause was accepted as part of a deal called the Kitchen Accord, negotiated by the federal Attorney General Jean Chrétien, Ontario's justice minister Roy McMurtry and Saskatchewan's justice minister Roy Romanow. Pressure from provincial governments (which in Canada have jurisdiction over property) and from the country's left wing, especially the New Democratic Party, also prevented Trudeau from including any rights protecting private property.
Nevertheless, Quebec did not support the Charter
(or the Canada Act 1982
), because it was then led by the allegedly uncooperative Parti Québécois, because it was excluded from the negotiation of the Kitchen Accord, which the provincial leaders saw as being too centralist, or because of objections to its provisions relating to the process of future constitutional amendment.[ "The Night of Long Knives", ]Canada: A People's History.
CBC. URL accessed on April 8, 2006. Qubec leaders also opposed the inclusion of mobility rights and minority language education rights.[CBC evening news broadcast, November 5, 1981. Online at CBC Archives, [2], beginning at timepoint 4:04 of the clip. Accessed August 8, 2006.] The Charter
is still applicable in Quebec because all provinces are bound by the Constitution. However, Quebec's opposition to the 1982 patriation package has led to two failed attempts to amend the Constitution (the Meech Lake Accord and Charlottetown Accord) which were designed primarily to obtain Quebec's political approval of the Canadian constitutional order.
While the Canadian Charter of Rights and Freedoms
was adopted in 1982, it was not until 1985 that the main provisions regarding equality rights (section 15) came into effect. The delay was meant to give the federal and provincial governments an opportunity to review pre-existing statutes and strike potentially unconstitutional inequalities.
The Charter
has been amended since its enactment. Section 25 was amended in 1983 to explicitly recognize more rights regarding Aboriginal land claims, and section 16.1 was added in 1993. A proposed Rights of the Unborn Amendment in 1986-1987, which would have enshrined fetal rights, failed in the federal Parliament. Other proposed amendments to the Constitution, included in the Charlottetown Accord of 1992, were never passed. These amendments would have specifically required the Charter
to be interpreted in a manner respectful of Quebec's distinct society, and would have added further statements to the Constitution Act, 1867 regarding racial and sexual equality and collective rights, and about minority language communities. Though the Accord was negotiated among many interest groups, the resulting provisions were so vague that Trudeau, then out of office, feared they would actually conflict with and undermine the Charters individual rights. He felt judicial review of the rights might be undermined if courts had to favour the policies of provincial governments, as governments would be given responsibility over linguistic minorities. Trudeau thus played a prominent role in leading the popular opposition to the Accord.
[ Behiels, Michael D. "Who Speaks for Canada? Trudeau and the Constitutional Crisis." In Trudeau's Shadow: The Life and Legacy of Pierre Elliott Trudeau, page 346.]The task of interpreting and enforcing the
Charter falls to the courts, with the
Supreme Court of Canada being the ultimate authority on the matter.
With the
Charter's supremacy confirmed by section 52 of the
Constitution Act, 1982, the courts continued their practice of striking down unconstitutional statutes or parts of statutes as they had with earlier case law regarding federalism. However, under section 24 of the
Charter, courts also gained new powers to enforce creative remedies and exclude more evidence in trials. Courts have since made many important decisions, including
R. v. Morgentaler (1988), which struck down
Canada's abortion law, and
Vriend v. Alberta (1998), in which the Supreme Court found the province's exclusion of
homosexuals from protection against discrimination violated section 15. In the latter case, the Court then read the protection into the law.
Courts may receive
Charter questions in a number of ways. Rights claimants could be prosecuted under a
criminal law that they argue is unconstitutional. Others may feel government services and policies are not being dispensed in accordance with the
Charter, and apply to lower-level courts for injunctions against the government (as was the case in
Doucet-Boudreau v. Nova Scotia (Minister of Education)). A government may also raise questions of rights by submitting
reference questions to higher-level courts; for example, Prime Minister
Paul Martin's government approached the Supreme Court with
Charter questions as well as federalism concerns in the case
Re Same-Sex Marriage (2004). Provinces may also do this with their superior courts. The government of
Prince Edward Island initiated the
Provincial Judges Reference by asking its
provincial Supreme Court a question on
judicial independence under section 11.
In several important cases, judges developed various tests and precedents for interpreting specific provisions of the
Charter. These include the
Oakes test for section 1, set out in the case
R. v. Oakes (1986), and the
Law test for section 15, developed in
Law v. Canada (1999). Since
Re B.C. Motor Vehicle Act (1985), various approaches to defining and expanding the scope of
fundamental justice (the Canadian name for
natural justice or
due process) under section 7 have been adopted. (
For more information, see the articles on each Charter
section).
In general, courts have embraced a
purposive interpretation of
Charter rights. This means that since early cases like
Hunter v. Southam (1984) and
R. v. Big M Drug Mart (1985), they have concentrated not on the traditional, limited understanding of what each right meant when the
Charter was adopted in 1982, but rather on changing the scope of rights as appropriate to fit their broader purpose. This is tied to the
generous interpretation of rights, as the purpose of the
Charter provisions is assumed to be to increase rights and freedoms of people in a variety of circumstances, at the expense of the government powers. Constitutional scholar
Peter Hogg has approved of the generous approach in some cases, although for others he argues the purpose of the provisions was not to achieve a set of rights as broad as courts have imagined.
[Hogg, Constitutional Law of Canada, 2003 Student Ed., pages 722 and 724-725.] Indeed, this approach has not been without its critics. Alberta politician
F.L. Morton and political scientist
Rainer Knopff have been very critical of this phenomenon. Although they feel the basis for the approach, the
living tree doctrine (the classical name for generous interpretations of the Canadian Constitution), is sound, they argue
Charter case law has been more radical. When the living tree doctrine is applied right, the authors claim, "The elm remained an elm; it grew new branches but did not transform itself into an oak or a willow." The doctrine can be used, for example, so a right is upheld even when a government threatens to violate it with new technology, as long as the essential right remains the same; but the authors claim that the courts have used the doctrine to "create new rights." As an example, the authors note that the
Charter right against
self-incrimination has been extended to cover scenarios in the justice system that had previously been unregulated by self-incrimination rights in other Canadian laws.
[Morton, F.L. and Ranier Knopff. The Charter Revolution & the Court Party. Toronto: Broadview Press, 2000, pages 46-47.]Another general approach to interpreting
Charter rights is to consider legal precedent regarding the
United States Bill of Rights, which influenced the text of the
Charter and has generated a great deal of thoughts on the extent of rights in a common law, democratic system and how bills of rights should be enforced by courts. However, American precedent is not considered infallible. The Canadian Supreme Court has referred to the Canadian and American bills as being "born to different countries in different ages and in different circumstances."
[Hogg, Constitutional Law of Canada. 2003 Student Ed., pages 732; the case quoted was R. v. Rahey (1987) by Gérard La Forest.]Legal organizations have also been formed and frequently intervene in cases to assist courts in the process of interpreting the
Charter. A notable example would be the
Women's Legal Education and Action Fund (LEAF).
A further approach to the
Charter, taken by the courts, is the
dialogue principle, which involves greater participation by elected governments. This approach involves governments drafting legislation in response to court rulings and courts acknowledging the effort if the new legislation is challenged.
|
The United States Bill of Rights influenced the text of the Charter, but its rights provisions are interpreted more conservatively. Canadian and American cases nevertheless sometimes have similar outcomes because the broader Charter rights are limited by section 1 of the Charter. |
Some Canadian
Members of Parliament saw the movement to entrench a charter as contrary to the British model of
Parliamentary supremacy. Others would say that the
European Convention on Human Rights has now limited British parliamentary power to a greater degree than the
Canadian Charter limited the power of the Canadian Parliament and provincial legislatures. Hogg has speculated that the British adopted the
European Convention partly because they were inspired by the similar
Canadian Charter.
[Saunders, Philip. "The Charter at 20", CBC News Online, April 2002. URL accessed on March 17, 2006. ]The
Canadian Charter bears a number of similarities to the
European Convention, specifically in relation to the limitations clauses contained in the European document. The underlying reason for these similarities is that the
Canadian Charter and the
European Convention are both inspired by the
Universal Declaration of Human Rights. Because of this similarity with European human rights law, the Supreme Court of Canada turns not only to the
Constitution of the United States case law in interpreting the
Charter, but also to
European Court of Human Rights cases.
The core distinction between the United States
Bill of Rights and
Canadian Charter is the existence of the limitations and notwithstanding clauses. Canadian courts have consequently interpeted each right more expansively. However, due to the limitations clause, where a violation of a right exists, the law will not necessarily grant protection of that right. In contrast, rights under the US
Bill of Rights are absolute and so a violation will not be found until there has been sufficient encroachment on those rights. The sum effect is that both constitutions provide comparable protection of many rights. Fundamental justice (in section 7 of the
Canadian Charter) is therefore interpreted to include more legal protections than
due process, which is its US equivalent. Freedom of expression in section 2 also has a more wide-ranging scope than the
First Amendment to the United States Constitution's freedom of speech.
[Hogg, Constitutional Law of Canada. 2003 Student Ed., pages 732-733.] In
RWDSU v. Dolphin Delivery Ltd. (1986), the Canadian Supreme Court considered
picketing of the kind the US First Amendment did not permit, as it was disruptive conduct (though there was some speech involved that the First Amendment might otherwise protect). The Supreme Court, however, ruled the picketing, including the disruptive conduct, were fully protected under section 2 of the
Charter. The Court then relied on section 1 to find the injunction against the picketing was just.
[Manfredi, Christopher P. "The Canadian Supreme Court and American Judicial Review: United States Constitutional Jurisprudence and the Canadian Charter of Rights and Freedoms." The American Journal of Comparative Law, vol. 40, no. 1. (Winter, 1992), pages 12-13.] The limitations clause has also allowed governments to enact laws that would be considered unconstitutional in the US. The Supreme Court of Canada has upheld some of Quebec's limits on the use of
English on signs and has upheld
publication bans that prohibit media from mentioning the names of juvenile criminals.
Section 28 of the
Charter performs a function similar to that of the
Equal Rights Amendment in the US. However, the Equal Rights Amendment is currently unratified. This may be because the American Amendment received an unfavourable reaction from the
religious right, and there was no comparable opposition to the
Charter's section 28.
[Women's International Network News, "Women on the Move in Canada." Summer 1993, Vol. 19 Issue 3, page 71.] Still, Canadian feminists had to stage large protests to demonstrate support for the inclusion of the section.
The
International Covenant on Civil and Political Rights has several parallels with the
Canadian Charter, but in some cases the
Covenant goes further with regard to rights in its text. For example, a right to
legal aid has been read into section 10 of the
Charter (the right to counsel), but the
Covenant explicitly guarantees the accused need not pay "if he does not have sufficient means."
[Hogg, Constitutional Law of Canada. 2003 Student Ed., pages 733-734.]The
Canadian Charter has little to say, explicitly at least, about economic and social rights. On this point, it stands in marked contrast with the
Quebec Charter of Human Rights and Freedoms and with the
International Covenant on Economic, Social and Cultural Rights. There are some who feel economic rights ought to be read into section 7 rights to
security of the person and section 15 equality rights to make the
Charter similar to the
Covenant. The rationale is that economic rights can relate to a decent
standard of living and can help the civil rights flourish in a livable environment. Canadian courts, however, have been hesitant in this area, stating that economic rights are
political questions and adding that as
positive rights, economic rights are of questionable legitimacy.
[Lugtig, Sarah and Debra Parkes, "Where do we go from here?" Herizons, Spring 2002, Vol. 15 Issue 4, page 14.]The
Charter itself influenced the
Bill of Rights in the
Constitution of South Africa.
|
The "March of Hearts" rally for same-sex marriage equality under the Charter in 2004. |
The
Charter was intended to be a source for
national values and national unity. As Professor
Alan Cairns noted, "The initial federal government premise was on developing a pan-Canadian identity."
[Quoted by Saunders.] Trudeau himself later wrote in his
Memoirs that "Canada itself" could now be defined as a "society where all people are equal and where they share some fundamental values based upon freedom," and that all Canadians could identify with the values of liberty and equality.
[Trudeau, Pierre Elliott. Memoirs, Toronto: McClelland & Stewart, 1993, pages 322-323.]The
Charters unifying purpose was particularly important to the mobility and language rights. According to author Rand Dyck, some scholars believe section 23, with its minority language education rights, "was the only part of the Charter with which Pierre Trudeau was truly concerned."[Dyck, Rand. ]Canadian Politics: Critical Approaches.
Third ed. Scarborough, Ontario: Nelson Thomson Learning, 2000, page 442. Through the mobility and language rights, French Canadians, who have been at the centre of unity debates, are able to travel throughout all Canada and receive government and educational services in their own language. Hence, they are not confined to Quebec (the only province where they form the majority and where most of their population is based), which would polarize the country along regional lines. The Charter
was also supposed to standardize previously diverse laws throughout the country and gear them towards a single principle of liberty.[Hogg, ]Constitutional Law of Canada
. 2003 Student Ed., pages 704-705.
Former premier of Ontario Bob Rae has stated that the Charter
"functions as a symbol for all Canadians" in practice because it represents the core value of freedom. Academic Peter Russell has been more skeptical of the Charters value in this field. Cairns, who feels the
Charter is the most important constitutional document to many Canadians, and that the
Charter was meant to shape the Canadian identity, has also expressed concern that groups within society see certain provisions as belonging to them alone rather than to all Canadians.
It has also been noted that issues like
abortion and
pornography, raised by the
Charter, tend to be controversial.
Still,
opinion polls in 2002 showed Canadians felt the
Charter significantly represented Canada, although many were unaware of the document's actual contents.
[Byfield, Joanne. "The right to be ignorant." Report/Newsmagazine (National Edition); December 16, 2002, Vol. 29, Issue 24, page 56.]The only values mentioned by the
Charter's preamble are recognition for the supremacy of
God and the
rule of law, but these have been controversial and of little legal consequence. In 1999, MP
Svend Robinson proposed before the
Canadian House of Commons that the
Charter be amended to remove the mention of God, as he felt it did not reflect Canada's diversity.
Section 27 also recognizes multiculturalism, which the
Department of Canadian Heritage argues is prized among Canadians.
[Guide to the Canadian Charter of Rights and Freedoms. Human Rights Program. Canadian Heritage. URL accessed on March 25, 2006.] |
The Charter Revolution & the Court Party is a book by F.L. Morton and Rainer Knopff that is highly critical of the use of the Charter by judges, interest groups and the federal government. |
While the
Charter has enjoyed a great deal of popularity, with 82% of Canadians describing it as a "good thing" in opinion polls in 1987 and 1999,
the document has also been subject to published criticisms from both sides of the political spectrum. One left-wing critic is Professor
Michael Mandel, who wrote that in comparison to politicians, judges do not have to be as sensitive to the will of the electorate, nor do they have to make sure their decisions are easily understandable to the average citizen. This, in Mandel's view, limits democracy. Mandel has also asserted that the
Charter makes Canada more like the United States, especially by serving corporate rights and
individual rights rather than group rights and social rights. He has argued that there are several rights that should be included in the
Charter, such as a right to health care and a basic right to free education.
[Dyck, page 446, summarizing Mandel, Michael, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Wall and Thompson, 1989; revised edition, 1994)] Hence, the perceived Americanization of Canadian politics is seen as coming at the expense of values more important for Canadians.
Right-wing critics Morton and Knopff have raised several concerns about the
Charter, notably by alleging that the federal government has used it to limit provincial powers by allying with various rights claimants and interest groups. In their book
The Charter Revolution & the Court Party, Morton and Knopff express their suspicions of this alliance in detail, accusing the Trudeau and
Chrétien governments of funding litigious groups. For example, these governments used the Court Challenges Program to support minority language educational rights claims. Morton and Knopff also claim that
crown counsel have intentionally lost cases in which the government was taken to court for violating rights, particularly
gay rights and
women's rights.
[Morton and Knopff, 95. They complain about crown counsels on page 117.]Political scientist Rand Dyck, in observing these criticisms, notes that while judges have had their scope of review widened, they have still upheld most laws challenged on
Charter grounds. With regard to litigious interest groups, Dyck points out that "the record is not as clear as Morton and Knopff imply. All such groups have experienced wins and losses."
[Dyck, page 448.]The political philosopher
Charles Blattberg has criticized the
Charter for contributing to the fragmentation of the country, at both the individual and group levels. In encouraging discourse based upon rights, the
Charter is said to inject an adversarial spirit into Canadian politics, making it difficult to realize the common good. Blattberg also claims that the
Charter undercuts the Canadian political community since it is ultimately a cosmopolitan document. Finally, he argues that people would be more motivated to uphold individual liberties if they were expressed with terms that are much "thicker" (less abstract) than rights.
[Blattberg, Charles. Shall We Dance? A Patriotic Politics for Canada. Montreal and Kingston: McGill-Queen's University Press, 2003, especially pages 83-94]*
Canadian Human Rights Act*
Canadian Bill of Rights*
Quebec Charter of Human Rights and Freedoms*
Supreme Court of Canada**
List of Supreme Court of Canada cases (Dickson Court)**
List of Supreme Court of Canada cases (Lamer Court)**
List of Supreme Court of Canada cases (McLachlin Court)Notes
References
*G.-A Beaudoin and E. Ratushny,
The Canadian Charter of Rights and Freedoms 2nd ed.,
Carswell, Toronto, 1989.
*P.W. Hogg,
Constitutional law of Canada, 4th ed., Carswell: Scarborough with
Supplement to Constitutional Law of Canada (2002-)
*J.P. Humphrey,
Human Rights and the United Nations: A Great Adventure, New York: Transnational Publishers, 1984.
*J.E. Magnet,
Constitutional Law, 8th ed. (2001).
External links
*
Canadian Charter of Rights and Freedoms - Canadian Department of Justice website
*
Highlights of case law by the Canadian Legal Information Institute
*
Constitutional Law of Canada by Professor Joseph E. Magnet, University of Ottawa
*
Canadian Bill of Rights, 1960*
Canadian Justice Review Board
