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Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada Constitution of Canada

The Constitution [i] of Canada [i] is the supreme law in Canada. ... 

. It forms the first part of the Constitution Act, 1982. The Charter is intended to protect certain political and civil rights Civil rights

Civil rights are the protections and privileges of personal liberty given to all citizens by law.... 

 of people in Canada Canada

Canada is the world's second-largest [i] country by total area, occupying most ... 

 from the policies and actions of all levels of government Government of Canada

The Government of Canada is the name of the federal government [i] of Canada [i]. ... 

. 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 Canadian Bill of Rights

*Limited equality rights [i] ... 

, which was introduced by the government of John Diefenbaker John Diefenbaker

John George Diefenbaker, CH [i], PC [i] ... 

 in 1960.

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Timeline

1995   Egan v. Canada - Supreme Court of Canada Supreme Court of Canada

The Supreme Court of Canada is the highest court [i] of Canada and is the final court of a ... 

 rules that sexual orientation is a prohibited grounds of discrimination under the Canadian Charter of Rights and Freedoms.



Encyclopedia


The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada Constitution of Canada

The Constitution [i] of Canada [i] is the supreme law in Canada. ... 

. It forms the first part of the Constitution Act, 1982. The Charter is intended to protect certain political and civil rights Civil rights

Civil rights are the protections and privileges of personal liberty given to all citizens by law.... 

 of people in Canada Canada

Canada is the world's second-largest [i] country by total area, occupying most ... 

 from the policies and actions of all levels of government Government of Canada

The Government of Canada is the name of the federal government [i] of Canada [i]. ... 

. 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 Canadian Bill of Rights

*Limited equality rights [i]
... 

, which was introduced by the government of John Diefenbaker John Diefenbaker

John George Diefenbaker, CH [i], PC [i] ... 

 in 1960. However, the Bill of Rights was only a federal statute Statute

A statute is a formal, written law [i] of a country [i] or state [i], written and enacted by its legislative [i] ... 

, 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 right Human rights

Human rights refers to the concept of human beings [i] as having universal rights [i], or status, regard ... 

s and freedoms that emerged after World War II World War II

World War II, or the Second World War, was a worldwide [i] conflict [i] fought betwe ... 

 also wanted to entrench the principles enunciated in the Universal Declaration of Human Rights. Hence, Prime Minister Prime Minister of Canada

The Prime Minister [i] of Canada [i] , is the head of the Government of Canada [i].... 

 Pierre Trudeau Pierre Trudeau

Joseph Philippe Pierre Yves Elliott Trudeau PC [i], CC [i] ... 

'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 Court system of Canada

The Court system of Canada is made up of many court [i]s differing in levels of legal superiority and se ... 

, 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 United Kingdom

The United Kingdom of Great Britain and Northern Ireland is a country and sovereign state [i] tha ... 

, 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.

Features

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, but a few of the rights belong exclusively to natural persons or to citizens of Canada Canadian nationality law

Canadian citizenship is obtained by birth in Canada [i], by birth abroad, when at least one parent is a ... 

. 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 , namely freedom of conscience, freedom of religion Freedom of religion

Freedom of religion and belief is considered by many to be a fundamental human right [i]. ... 

, freedom of thought, freedom of expression Freedom of speech

Freedom of speech is the concept of being able to speak freely without censorship [i].... 

 and freedom of the press Freedom of the press

Freedom of the press is the guarantee by a government [i] of free public press [i] for its citizen [i]... 

, freedom of peaceful assembly Freedom of assembly

Freedom of assembly is the freedom [i] to associate with, or organize any groups, gatherings, cl ... 

, and freedom of association.
democratic rights: generally, the right to participate in political activities and the right to a democratic Democracy

Democracy is a form of government [i] for a nation state, or for an organiz ... 

 form of government:

the right to vote Voting

Voting is a method of decision making [i] wherein a group such as a meeting [i] or an electorate [i] att ... 

 and to be eligible to serve as member of a legislature.
a maximum duration of legislatures is set at five years.
an annual sitting of legislatures is required as a minimum.
mobility rights: : 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:

life, liberty, and security of the person.
freedom from unreasonable search and seizure.
freedom from arbitrary detention.
rights on arrest or detention, including the right to retain a lawyer and to be informed of that right.
rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.
freedom from cruel and unusual punishment.
rights not to incriminate oneself.
rights to an interpreter in a court proceeding.
equality rights: : 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 English language

English is a widely distributed language that originated in England [i] but is now the primary language ... 

 or French language French language

French is the third-largest of the Romance languages [i] in terms of number of native speakers, after Spanish [i] ... 

 in communications with Canada's federal government and certain provincial governments. Specifically, the language laws enshrined in the Charter include:

English and French are the official languages of Canada and New Brunswick New Brunswick

New Brunswick , is one of Canada's [i] three Maritime provinces [i], and the only officially bili... 

.
the English and French-speaking communities of New Brunswick have equal rights to educational and cultural institutions.
the right to use either official language in Parliament Parliament of Canada

The Parliament of Canada is Canada [i]'s legislative branch [i], seated at Parliament Hill [i] ... 

 or the New Brunswick legislature.
the statutes and proceedings of Parliament and the New Brunswick legislature are to be printed in both official languages.
both official languages may be used in federal and New Brunswick courts.
the right to communicate with and be served by the federal and New Brunswick governments in either official language.
other constitutional language rights outside the Charter regarding English and French are sustained.
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.
minority language education rights: : 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 and the notwithstanding clause . 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  and obscenity . 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 Quebec

Quebec, or Qubec in French [i], In 1898, the Canadian Parliament passed the first ... 

 . The provinces of Saskatchewan Saskatchewan

Saskatchewan is the middle province [i] of Canada's [i] three prairie provinces [i] ... 

 and Alberta Alberta

Alberta is one of Canada [i]'s provinces [i]. ... 

 have also invoked the notwithstanding clause, to end a strike Strike action

Strike action, often simply called a strike, is a work stoppage caused by the mass refusal by employee [i] ... 

 and to protect an exclusively heterosexual definition Same-sex marriage in Canada

Same-sex marriage was legalized across Canada by the Civil Marriage Act [i] enacted on July 20 [i] ... 

 of marriage, respectively. The territory of Yukon also passed legislation once that invoked the notwithstanding clause, but the legislation was never proclaimed in force.

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 Multiculturalism

Multiculturalism is an ideology [i] advocating that society should consist of, or at least allow and inc ... 

 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 Section Thirty of the Canadian Charter of Rights and Freedoms

Section Thirty of the Canadian Charter of Rights and Freedoms is a section of the Charter [i] ... 

, 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".

History


Many of the rights and freedoms that are protected under the Charter, including the rights to freedom of speech Freedom of speech

Freedom of speech is the concept of being able to speak freely without censorship [i].... 

, habeas corpus and the presumption of innocence, 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 Canadian Bill of Rights

*Limited equality rights [i]
... 

, which the Canadian Parliament Parliament of Canada

The Parliament of Canada is Canada [i]'s legislative branch [i], seated at Parliament Hill [i] ... 

 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 Freedom of movement

Freedom of movement, mobility rights or the right to travel is a human rights [i] concept wh ... 

 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 Canadian Confederation

Canadian Confederation [i], or the Confederation of Canada, was the process by which the federal [i] ... 

 in 1967 aroused greater interest within the government in constitutional reform. Such reforms would include improving safeguards of rights, as well as patriation Patriation

Patriation is a legal term particularly used in Canada [i], to describe a process of constitution [i]al ... 

 of the Constitution, meaning the British Parliament Parliament of the United Kingdom

The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body [i] ... 

 would no longer have to approve constitutional amendments. Subsequently, Attorney General Pierre Trudeau Pierre Trudeau

Joseph Philippe Pierre Yves Elliott Trudeau PC [i], CC [i] ... 

 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. 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 Liberal Party of Canada

The Liberal Party of Canada, colloquially known as the Grits, is a Canadian [i] federal political party [i] ... 

 leader and prime minister in 1968, still very much wanted a constitutional bill of rights. The federal government and the provinces Provinces and territories of Canada

Provincial and territorial legislatures are unicameral [i], having no second chamber equivalent to the Canadian Senate [i] ... 

 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 Canada Act 1982

The Canada Act 1982 is an Act of Parliament [i] passed by the British Parliament [i] that severed all re ... 

. 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 , 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 Progressive Conservative Party of Canada

The Progressive Conservative Party of Canada was a Canadian [i] centre-right [i] conservative [i] ... 

 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 Canadian Senate

The Senate of Canada is a component of the Parliament of Canada [i], along with the Sovereign [i] ... 

 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 Multiculturalism

Multiculturalism is an ideology [i] advocating that society should consist of, or at least allow and inc ... 

. 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.

In its decision in the Patriation Reference , the Supreme Court of Canada Supreme Court of Canada

The Supreme Court of Canada is the highest court [i] of Canada and is the final court of a ... 

 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 Jean Chrétien

Joseph Jacques Jean Chrtien, usually known as Jean Chrtien, [[Queen's Privy Council for Canada|PC]... 

, Ontario's justice minister Roy McMurtry Roy McMurtry

Roland Roy McMurtry is a judge [i] and former politician [i] in Ontario [i], Canada [i].
... 

 and Saskatchewan's justice minister Roy Romanow Roy Romanow

Roy Romanow, PC [i] , OC [i] , SOM [i]... 

. Pressure from provincial governments and from the country's left wing, especially the New Democratic Party New Democratic Party

The New Democratic Party is a political party [i] in Canada [i] with a social democratic [i] ... 

, also prevented Trudeau from including any rights protecting private property.

Nevertheless, Quebec did not support the Charter , with "conflicting interpretations" as to why. The opposition could have owed to the Parti Québécois Parti Québécois

The Parti Qubcois or PQ is a political party [i] that advocates national [i] sovereignty [i] ... 

leadership being allegedly uncooperative, because it was more committed to gaining sovereignty for Quebec. It could have owed to Quebec leaders being excluded from the negotiation of the Kitchen Accord Patriation

Patriation is a legal term particularly used in Canada [i], to describe a process of constitution [i]al ... 

, which they saw as being too centralist. It could have owed to provincial leaders' objections to the Accord's provisions relating to the process of future constitutional amendment. They also opposed the inclusion of mobility rights and minority language education rights. 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 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 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 Fetal rights

The term fetal rights can refer either to legal rights accorded to fetuses or to the moral right... 

, failed in the federal Parliament. Other proposed amendments to the Constitution, included in the Charlottetown Accord Charlottetown Accord

The Charlottetown Accord was a package of constitutional [i] amendments, proposed by the Canadian [i] ... 

 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.

Interpretation and enforcement

The task of interpreting and enforcing the Charter falls to the courts, with the Supreme Court of Canada Supreme Court of Canada

The Supreme Court of Canada is the highest court [i] of Canada and is the final court of a ... 

 being the ultimate authority on the matter.

With the Charters 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 R. v. Morgentaler

|-
! bgcolor="6699FF" | Case opinions
... 

, which struck down Canada's abortion law Abortion in Canada

Abortion in Canada is not limited by law.... 

, and
Vriend v. Alberta Vriend v. Alberta

Vriend v. Alberta [1998] 1 S.C.R.... 

, in which the Supreme Court found the province's exclusion of homosexuals Homosexuality

Homosexuality refers to sexual [i] and romantic [i] attraction between t ... 

 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 . A government may also raise questions of rights by submitting reference questions to higher-level courts; for example, Prime Minister Paul Martin Paul Martin

Paul Edgar Philippe Martin was the 21st Prime Minister of Canada [i] and the former leader of the Liberal Party of Canada [i]... 

's government approached the Supreme Court with
Charter questions as well as federalism concerns in the case Re Same-Sex Marriage Re Same-Sex Marriage

Reference re Same-Sex Marriage [2004] 3 S.C.R.... 

. Provinces may also do this with their superior courts. The government of Prince Edward Island Prince Edward Island

Prince Edward Island is a Canadian [i] province [i] coextensive with the island [i]... 

 initiated the
Provincial Judges Reference Provincial Judges Reference

The Provincial Judges Referencethe three formal titles of the decision are Manitoba Provincial Jud... 

 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 R. v. Oakes

|-
! bgcolor="6699FF" | Case opinions
... 

, and the Law test for section 15, developed in Law v. Canada Law v. Canada (Minister of Employment and Immigration)

Law v. Canada, [1999] 1 S.C.R.... 

. Since Re B.C. Motor Vehicle Act , various approaches to defining and expanding the scope of fundamental justice  under section 7 have been adopted. .

In general, courts have embraced a purposive interpretation of Charter rights. This means that since early cases like Hunter v. Southam Hunter v. Southam Inc.

Hunter v. Southam Inc. [1984] 2 S.C.R.... 

and R. v. Big M Drug Mart R. v. Big M Drug Mart Ltd.

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 [i] is a landmark decision [i] ... 

, 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. 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 , 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.

Another general approach to interpreting Charter rights is to consider legal precedent regarding the United States Bill of Rights United States Bill of Rights

In the United States [i], the Bill of Rights is the term for the first ten amendments [i] ... 

, 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."

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 .

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.

Comparisons with other human rights instruments


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.

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 United States Constitution

The United States Constitution is the supreme law [i] of the United States of America [i]. ... 

 case law in interpreting the Charter, but also to European Court of Human Rights European Court of Human Rights

The European Court of Human Rights , often referred to informally as the "Strasbourg Court", was created... 

 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 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 First Amendment to the United States Constitution

The First Amendment to the United States Constitution [i] is a part of the United States Bill of Rights [i]... 

's freedom of speech. In RWDSU v. Dolphin Delivery Ltd. , the Canadian Supreme Court considered picketing Picketing

Picketing is a form of resistance [i] in which people congregate outside a place of work [i] or location ... 

 of the kind the US First Amendment did not permit, as it was disruptive conduct . 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. 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 English language

English is a widely distributed language that originated in England [i] but is now the primary language ... 

 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 Equal Rights Amendment

The Equal Rights Amendment was a proposed amendment [i] to the United States Constitution [i] ... 

 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 Charters section 28. 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 International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights is a United Nations [i] treaty [i] based on the... 

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 , but the Covenant explicitly guarantees the accused need not pay "if he does not have sufficient means."

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.

The Charter itself influenced the in the Constitution of South Africa. 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.

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." 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 , 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.

Former premier of Ontario Premier of Ontario

The Premier of Ontario is the first minister [i] for the Canadian [i] province [i] ... 

 Bob Rae Bob Rae

Robert Keith Rae, PC [i] , OC [i], O.Ont [i] ... 

 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.

Criticism


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, 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 Jean Chrétien

Joseph Jacques Jean Chrtien, usually known as Jean Chrtien, [[Queen's Privy Council for Canada|PC]... 

 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 LGBT social movements

LGBT social movements is a collective term for a number of movements [i] that share rela ... 

 and women's rights.

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."

The political philosopher Charles Blattberg Charles Blattberg

Charles Blattberg is a professor of political philosophy at the Universit de Montral [i].
... 

 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" than rights.

See also


... 


  • Quebec Charter of Human Rights and Freedoms
  • Supreme Court of Canada Supreme Court of Canada

    The Supreme Court of Canada is the highest court [i] of Canada and is the final court of a ... 

    • List of Supreme Court of Canada cases
    • List of Supreme Court of Canada cases
    • List of Supreme Court of Canada cases

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
  • J.P. Humphrey, Human Rights and the United Nations: A Great Adventure, New York: Transnational Publishers, 1984.
  • J.E. Magnet, Constitutional Law, 8th ed. .

External links

  • - Charter of Rights website with video, audio and the Charter in over 20 languages
  • - Canadian Department of Justice website
  • by the Canadian Legal Information Institute
  • by Professor Joseph E. Magnet, University of Ottawa