One of the most influential documents in Canadian history, indeed some could even make a case that it is the document that defines Canada, is the Canadian Charter of Rights and Freedoms. The Charter is constitutional and lays out the rights and freedoms of every person in the country under the rule of law. While it can be similar to other nation’s constitutional rights (such as the US Bill of Rights), it has unique Canadian characteristics such as protected bilingualism and protections for same-sex marriage couples, to name a few.
The Charter was established by Liberal Party Prime Minister Pierre Trudeau in 1982 after many long years of constitutional battles with the Provinces and the Supreme Court of Canada. The Charter was created to replace Canada’s “Bill of Rights”, an addendum to an old series of Canadian constitutional laws that had been added over the course of a century. Trudeau envisioned a binding constitutional document that went further than merely guaranteeing freedom of speech and the right to vote. He envisioned a truly inclusive set of rights that would guide Canada’s future and at the same time ensure his own legacy (Trudeau was, after all, a self-described megalomaniac).
In 1982 Queen Elizabeth II herself signed the Charter of Rights and Freedoms into law, and the document has guided Canada ever since.
One of the key features of the Charter is the expanded power it gave to the courts. In Canada a citizen has various rights, but rights protected under the Charter are called “Charter Rights”. When a person’s charter rights may have been violated, by another person, organization or even government legislation, the Charter allows for the courts to intervene following a petition and a review. The Charter also allows for the courts to strike down any federal legislation that is deemed to contravene Charter Rights.
Since 1982 Canadian courts, particularly the Supreme Court of Canada, have played an important role in determining which federal and provincial legislation makes it into the books and which does not. An example is the landmark decision of Re BC Motor Vehicles Act, in which the Supreme Court of Canada applied Charter Rights interpretation to determine that BC’s provincial laws which required a person to be imprisoned for 7 days for driving without a license, whether they were aware of a suspension or not, were in breach of a person’s charter rights. This set a precedent in which even provincial legislation had to stand up to the litmus test of federal Charter Rights.
The Charter of Rights and Freedoms is not without its critics, particularly the clauses that give the courts so much freedom and power over legislation. Canada’s current governing Conservative Party and Prime Minister, Stephen Harper, have criticized the Charter particularly for this reason and recent talks of amending the Charter have been circulating around Parliament Hill. Since its inception in 1982, economist and former Alberta cabinet minister Ted Morton has been a very vocal critic of the Charter, seeing it as a mechanism to allow the federal government to infringe into provincial jurisdictions. In recent polls, however, the vast majority (more than 80%) of Canadians have grown incredibly comfortable and supportive of the Charter of Rights and Freedoms, and without changing the fundamental democratic nature of Canadian society, the Charter is here to stay.
Key Components of the Charter
Fundamental Freedoms: The Charter provides the following fundamental freedoms to every citizen and visitor to Canada:
- Freedom of conscience, belief, creed and religion.
- Freedom of speech and expression.
- Freedom of the press and other media of communication.
- Freedom of peaceful assembly and free association.
- The right to enter and leave Canada at will, and the right to move and take up residency in any Canadian province or territory.
Democratic Rights: the Charter provides certain rights necessary to sustain a healthy democracy:
- the right to vote and be a member of any federal or provincial legislature.
- the maximum duration of any legislature is set at five years.
- every legislature must sit at least once per year.
- the right to life, liberty and the security of the person.
Legal Rights: the Charter provides protections and guidelines for Canada’s legal system, particularly where pertaining to matters of criminal arrest and incarceration:
- Freedom from unreasonable search and seizure.
- Freedom from arbitrary detention and imprisonment.
- Right to legal counsel and the guarantee of habeus corpus.
- Right to be presumed innocent until proven guilty.
- Rights against self-incrimination, including spousal incrimination.
- Rights to an interpreter in any court proceeding.
Equality Rights: The Charter has a lengthy list of equality rights in an attempt to include all members of a pluralistic society. Only some of them are listed here:
- Equal treatment before the law, and equal protection of the law without discrimination based on race, creed, religion, sex, age, belief, language, sexuality, etc.
Language Rights: The Charter is unique in the world in that it sets out Canada’s official bilingual identity. Interestingly, New Brunswick was the only province that opted for official bilingual status, and is therefore the only province singled out by name in the Charter!
- English and French are the official languages of Canada.
- the English and French communities of New Brunswick have equal rights to educational and cultural institutions.
- the right to use either English or French in the federal Parliament of the New Brunswick legislature.
- the statutes and proceedings of parliament and the New Brunswick legislature are to be printed in both English and French.
- Constitutional language rights outside of the Charter are to be sustained (a grandfather clause).
One of the most interesting things about the Charter is the “notwithstanding clause”, which allows a Province to suspend portions of the Charter for a limited period of time in the event that the province has a) its own comparable guarantee of rights and b) clear proof that Charter rights infringe on provincial jurisdictions. While this clause has rarely been used, it is a clear attempt at compromise with provinces that are hostile to federal infringement.
Finally, one of the last parts of the Charter confirm the right to continued existence for the public and Catholic school board system in Canada, another unique Canadianism steeped in history (both the secular and Catholic school boards are funded by public tax money, allowing French cultural institutions to stay alive).