The Charter

The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the '' Constitution Act, 1982''. The ''Charter'' guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all areas and levels of the government. It is designed to unify Canadians around a set of principles that embody those rights. The ''Charter'' was signed into law by Queen Elizabeth II of Canada on April 17, 1982, along with the rest of the '' Constitution Act, 1982''.

The ''Charter'' was preceded by the ''Canadian Bill of Rights'', enacted in 1960, which was a federal statute rather than a constitutional document. As a federal statute, the ''Bill of Rights'' could be amended through the ordinary legislative process and had no application to provincial laws. The Supreme Court of Canada also narrowly interpreted the ''Bill of Rights'', showing reluctance to declare laws inoperative.''R. v. Drybones'' (1969), 970S.C.R. 282—the one and only federal law declared inoperative by the Supreme Court based on the ''Bill of Rights''.

See: ''Canada (AG) v. Lavell'', 974S.C.R. 1349—example of narrow interpretation by the SC. The relative ineffectiveness of the ''Canadian Bill of Rights'' motivated many 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. 2003. ''Constitutional Law of Canada'' (student ed.). Scarborough, ON: Thomson Canada Limited. p. 689. The British Parliament formally enacted the ''Charter'' as a part of the '' Canada Act 1982'' at the request of the Parliament of Canada in 1982, the result of the efforts of the government of Prime Minister Pierre Trudeau.

The ''Charter'' greatly expanded 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 ''Canadian Bill of Rights''. The courts, when confronted with violations of ''Charter'' rights, have struck down unconstitutional federal and provincial statutes and regulations or parts of statutes and regulations, as they did when Canadian case law was primarily concerned with resolving issues of federalism. The ''Charter'', however, 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 parent 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. The ''Charter'' only applies to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to the common law, not to private activity.

Features

Under the ''Charter'', people physically present in Canada have numerous civil and political rights. Most of the rights can be exercised by any legal person (the ''Charter'' does not define the corporation as a "legal person"), but a few of the rights belong exclusively to natural persons, or (as in sections 3 and 6) only 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.

Exceptions

Section 1 of the ''Charter'', known as the ''limitations clause'', allows governments to justify certain infringements of ''Charter'' rights. If a court finds that a ''Charter'' right has been infringed, it conducts an analysis under section 1 by applying the ''Oakes'' test, a form of proportionality review. Infringements are upheld if the government's objective in infringing the right is "pressing and substantial" in a "free and democratic society", and if the infringement can be "demonstrably justified". The Supreme Court of Canada has applied the ''Oakes'' test to uphold laws against 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.

In addition, some ''Charter'' rights are subject to the ''notwithstanding clause'' ( section 33). The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7 through 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. In 2021, the government of Ontario under Premier Doug Ford invoked the notwithstanding clause in order to push through Bill 307, the ''Protecting Elections and Defending Democracy Act'', doubling the amount of time election advertisements could run to 1 year from 6 months. A '' Globe and Mail'' editorial claimed it was to silence critics of his government during the 12 months leading up to an election. "That means today une 14, 2021 with just under a year to go before the next Ontario election, citizens are effectively barred from spending their own money to voice their opinion on any political issue." Canadian author Margaret Atwood commented, "Here comes 1984. What kind of Stalinist autocracy does this bunch have in mind?" In 2006, the territory of Yukon also passed legislation that invoked the notwithstanding clause, but the legislation was never proclaimed in force.

Rights and freedoms

The rights and freedoms enshrined in 34 sections of the ''Charter'' include:

Fundamental freedoms

; Section 2: lists what the ''Charter'' calls "fundamental freedoms" namely freedom of conscience, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press and of other media of communication, freedom of peaceful assembly, and freedom of association. In case law, this clause is cited as the reason for the religious neutrality of the state.

Democratic rights

Generally, the right to participate in political activities and the right to a democratic form of government are protected:
; Section 3 : the right to vote and to be eligible to serve as member of the House of Commons of Canada and provincial and territorial legislative assemblies.
; Section 4 : the maximum duration of the House of Commons and legislative assemblies is set at five years.
; Section 5 : an annual sitting of Parliament and legislatures is required.

Mobility rights

; Section 6: protects the mobility rights of Canadian citizens which include the right to enter, remain in, and leave Canada. Citizens and permanent residents have the ability to move to and take up residence in any province to pursue gaining livelihood.

Legal rights

Rights of people in dealing with the justice system and law enforcement are protected:

; Section 7: right to life, liberty, and security of the person.
; Section 8: freedom from unreasonable search and seizure.
; Section 9: freedom from arbitrary detention or imprisonment.
; Section 10 :right to legal counsel and the guarantee of habeas corpus.
; Section 11: rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.
; Section 12 :right not to be subject to cruel and unusual punishment.
; Section 13 :rights against self-incrimination.
; Section 14 :right 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, people have 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 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 and English speaking minority communities to have their children educated in their own language.

Other sections

The remaining provisions help to clarify how the ''Charter'' works in practice.

; Section 24 :establishes how courts may enforce the ''Charter''.
; Section 25 :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 :clarifies that other rights and freedoms in Canada are not invalidated by the ''Charter''.
; Section 27 :requires the ''Charter'' to be interpreted in a multicultural context.
; Section 28: states all ''Charter'' rights are guaranteed equally to men and women.
; Section 29: confirms the rights of separate schools are preserved.
;Section 30: clarifies the applicability of the ''Charter'' in the territories.
;Section 31: confirms that the ''Charter'' does not extend the powers of legislatures.
; Section 34: states that Part I of the ''Constitution Act, 1982'', containing the first 34 sections of the Act, 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, 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'', which the Canadian Parliament enacted in 1960. However, the ''Bill of Rights'' had a number of shortcomings. Unlike the ''Charter'', it was an ordinary Act of Parliament, applicable only to the federal government, and could be amended by a simple majority of Parliament. Moreover, the courts chose to interpret the ''Bill of Rights'' only sparingly, and only on rare occasions applied it to find a contrary law inoperative. Additionally, 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.

The centennial of Canadian Confederation in 1967 aroused greater interest within the government in constitutional reform. Such reforms would not only improve the safeguarding of rights, but would also amend the Constitution to free Canada from the authority of British Parliament (also known as '' patriation''), ensuring the full sovereignty of Canada. 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 would later be evident in the ''Charter'', including the protection of language rights; exclusion of economic rights; and the allowance of limitations on rights, which would be included in the ''Charter''s limitation and notwithstanding clauses. In 1968, Strayer was made the director of the Constitutional Law Division of the Privy Council Office, followed in 1974 by his appointment as assistant deputy Minister of Justice. During these years, Strayer played a role in writing the bill that was ultimately adopted.

''Constitution Act, 1982''

Meanwhile, Trudeau, who had become Liberal leader and prime minister in 1968, still very much wanted a constitutional bill of rights. The federal and provincial governments discussed creating one during negotiations for patriation, resulting in the Victoria Charter in 1971, which was never implemented. Trudeau continued his efforts, however, promising constitutional change during the 1980 Quebec referendum. He succeeded in 1982 with the passage of the '' Canada Act 1982'' in the British Parliament, which enacted the ''Constitution Act, 1982'' as part of the Constitution of Canada.

The inclusion of a charter of rights in the patriation process was a much-debated issue. Trudeau spoke on television in October 1980, where he announced his intention to constitutionalize a bill of rights that would include: fundamental freedoms, such as the freedom of movement, democratic guarantees, legal rights, language rights and equality rights.Weinrib, Lorraine E. 1998. "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 A. Cohen and J. L. Granatstein. Toronto: Vintage Canada. However, Trudeau 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 members of Parliament (MPs) to further examine the bill 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 advocacy groups put forward their perceptions on the draft 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 now exclude evidence in trials if 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 the 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'' (1981), the Supreme Court ruled there was a constitutional convention that some provincial approval should be sought for constitutional reform. As the provinces still had doubts about the ''Charter''s 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 New Democratic Party, also prevented Trudeau from including any rights protecting private property.

Quebec

Quebec did not support the ''Charter'' (or the ''Canada Act 1982''), with conflicting interpretations as to why. The opposition could have owed to the Parti Québécois (PQ) leadership being allegedly uncooperative because it was more committed to gaining sovereignty for Quebec. This could have owed to the exclusion of Quebec leaders from the negotiation of the Kitchen Accord, which they saw as being too centralist. It could have also owed to objections by provincial leaders to the accord's provisions relating to the process of future constitutional amendment. The PQ leaders also opposed the inclusion of mobility rights and minority language education rights. The ''Charter'' is applicable in Quebec because all provinces are bound by the constitution. However, Quebec's opposition to the 1982 patriation package 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.

Following 1982

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.

Amendments

The ''Charter'' has been amended since its enactment. Section 25 was amended in 1983 to explicitly recognize more rights regarding Aboriginal land claims, while section 16.1 was added in 1993. There have also been a number of unsuccessful attempts to amend the ''Charter'', including the failed Charlottetown Accord of 1992. The Charlottetown Accord 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 ''Charter''s 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 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 sexual orientation as a prohibited grounds of discrimination violated the equality rights under 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.This would be 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'', including the Oakes test (section 1), set out in the case '' R v Oakes'' (1986); and the Law test (section 15), developed in '' Law v Canada'' (1999) which has since become defunct. Since ''Reference Re BC Motor Vehicle Act'' (1985), various approaches to defining and expanding the scope of fundamental justice (i.e., natural justice or due process) under section 7 have been adopted.For more information, see the articles on each ''Charter'' section.

Purposive and generous interpretation

In general, courts have embraced a purposive interpretation of ''Charter'' rights. This means that since early cases, such as '' Hunter v Southam Inc'' (1984) and '' R v Big M Drug Mart Ltd'' (1985), they have concentrated less on the traditional, limited understanding of what each right meant when the ''Charter'' was adopted in 1982. Rather, focus has been given towards 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 (2003) 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. The approach has not been without its critics. Alberta politician Ted Morton and political scientist Rainer Knopff have been very critical of this phenomenon. Although they believe in the validity of the living tree doctrine, which is the basis for the approach (and the tradition term for generous interpretations of the Canadian Constitution), they argue ''Charter'' case law has been more radical. When the living tree doctrine is applied correctly, Morton and Knopff (2000) 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, Ted, and Knopff, Rainer (2000). ''The Charter Revolution & the Court Party.'' Toronto: Broadview Press.

Other interpretations

Another general approach to interpreting ''Charter'' rights is to consider international legal precedents with countries that have specific rights protections, such as the U.S. Bill of Rights (which had influenced aspects of the ''Charter'') and the Constitution of South Africa. However, international precedent is only of guiding value and is not binding. For example, the Supreme Court has referred to the Charter and the U.S. Bill of Rights as being "born to different countries in different ages and in different circumstances".The case quoted in Hogg (2003:732) is ''R v Rahey'' (1987) by Gérard La Forest.

Advocacy groups frequently intervene in cases to make arguments on how to interpret the ''Charter''. Some examples are the British Columbia Civil Liberties Association, Canadian Civil Liberties Association, Canadian Mental Health Association, Canadian Labour Congress, the Women's Legal Education and Action Fund (LEAF), and REAL Women of Canada. The purpose of such interventions is to assist the court and to attempt to influence the court to render a decision favourable to the legal interests of the group.

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 documents

Some Canadian members of Parliament saw the movement to entrench a charter as contrary to the British model of Parliamentary supremacy. Hogg (2003) has speculated that the reason for the British adoption of the Human Rights Act 1998, which allows the European Convention on Human Rights to be enforced directly in domestic courts, is 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.Dickson, Brice. November 11, 1999. "Human Rights in the 21st Century" ecture ''Amnesty International.'' Belfast: Queen's University. Because of this similarity with European human rights law, the Supreme Court turns not only to the United States Constitution case law in interpreting the ''Charter'', but also to European Court of Human Rights cases.

Canadian ''Charter'' vs. U.S. ''Bill of Rights''

The core distinction between the U.S. ''Bill of Rights'' and the Canadian ''Charter'' is the existence of the limitations and notwithstanding clauses. Canadian courts have consequently interpreted 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 U.S. Bill are absolute, thus 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. Canada's fundamental justice (section 7) is therefore interpreted to include more legal protections than due process, which is the U.S. equivalent.

Freedom of expression (section 2) also has a wider-ranging scope than the freedom of speech guaranteed under the U.S. First Amendment (1A). For instance, a form of picketing, though involving speech that might have otherwise been protected, was deemed as disruptive conduct and not protected by the U.S. 1A, but was considered by the Supreme Court in ''RWDSU v. Dolphin Delivery Ltd.'' (1986). The Supreme Court would rule the picketing, including the disruptive conduct, as fully protected under section 2 of the ''Charter'', after which section 1 would be used to argue the injunction against the picketing as just.

The limitations clause has also allowed governments to enact laws that would be considered unconstitutional in the U.S. For example, the Supreme Court 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.

The un-ratified Equal Rights Amendment in the U.S., which garnered many critics when proposed, performs a similar function to that of the ''Charter'' section 28, which received no comparable opposition. Still, Canadian feminists had to stage large protests to demonstrate support for the inclusion of section 28, which had not been part of the original draft of the Charter.

Comparisons to other documents

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'' (right to counsel), but the Covenant explicitly guarantees the accused need not pay "if he does not have sufficient means".

Canada's ''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 the rights to security of the person (section 7) and equality rights (section 15) to make the Charter similar to the ''Covenant''.Lugtig, Sarah, and Debra Parkes, 2002. "Where do we go from here?" '' Herizons'' 15(4). p.14. 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 Bill of Rights in the Constitution of South Africa. The limitations clause under section 36 of the South African law has been compared to section 1 of the ''Charter''. Likewise, Jamaica's ''Charter of Fundamental Rights and Freedoms'' was also influenced, in part, by Canada's ''Charter''.

The ''Charter'' and national values

The ''Charter'' was intended to be a source of Canadian values and national unity. As Professor Alan Cairns noted, "the initial federal government premise was on developing a pan-Canadian identity". Pierre Trudeau himself later wrote in his ''Memoirs (1993)'' 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 ''Charter''s unifying purpose was particularly important to the mobility and language rights. According to author Rand Dyck (2000), 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. 2000. ''Canadian Politics: Critical Approaches'' (3rd ed.). Scarborough, ON: Nelson Thomson Learning. 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.

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 ''Charter''s 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.

The only values mentioned by the ''Charter''s preamble are recognition of the supremacy of God and the rule of law, but these have been controversial and of minor legal consequence. In 1999, MP Svend Robinson brought forward a failed proposal before the House of Commons of Canada that would have amended the ''Charter'' by removing the mention of God, as he felt it did not reflect Canada's diversity.

Section 27 also recognizes a value of multiculturalism. In 2002, polls found 86% of Canadians approved of this section.

Criticism

While the ''Charter'' has enjoyed a great deal of popularity, with 82 percent 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. According to columnist David Akin (2017), while most Liberals support the ''Charter'', most Conservatives, most New Democrats, most Indigenous people, and Québécois see the ''Charter'' as "problematic" and "something to be challenged in order to be Canadian".

One left-wing critic is professor Michael Mandel (1989),Dyck (2000:446) summarizes Mandel, Michael. 1994 989 ''The Charter of Rights and the Legalization of Politics in Canada'' (revised ed.). Toronto: Wall and Thompson. 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 Canadian 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 things that should be included in the ''Charter'', such as a right to health care and a basic right to free education. Hence, the perceived Americanization of Canadian politics is seen as coming at the expense of values more important for Canadians. The labour movement has been disappointed in the reluctance of the courts to use the ''Charter'' to support various forms of union activity, such as the "right to strike".

Conservative critics Morton and Knopff (2000) 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'' (2000), Morton and Knopff express their suspicions of this alliance in detail, accusing the Pierre 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 assert that crown counsel has intentionally lost cases in which the government was taken to court for allegedly violating rights,Morton and Knopff (2000) complain about crown counsels on p.117. particularly gay rights and women's rights.

Political scientist Rand Dyck (2000), 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."

Political philosopher Charles Blattberg (2003) 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, Blattberg claims the ''Charter'' injects 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. 2003. ''Shall We Dance? A Patriotic Politics for Canada''. Montreal: McGill-Queen's University Press. especially pp. 83–94.

See also

*''Canadian Bill of Rights''
*'' Canadian Human Rights Act''
* History of Canada
* Human rights in Canada
*'' Quebec Charter of Human Rights and Freedoms''
*Supreme Court of Canada
*'' Veterans' Bill of Rights''
** 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)

References

Footnotes

Citations

Further reading

* Beaudoin, G., and E. Ratushny. 1989. ''The Canadian Charter of Rights and Freedoms''. (2nd ed.). Toronto: Carswell.
* Black-Branch, Jonathan L. 1995
''Making sense of the Canadian Charter of Rights and Freedoms''
Canadian Education Association.
* Department of Justice Canada. 2019.
Examples of Charter-related cases
" ''Canada's System of Justice''. Department of Justice Canada. Web.
* Hogg, Peter W. 2002. ''Constitutional law of Canada'' (4th ed.), with ''Supplement to Constitutional Law of Canada''. Scarborough: Carswell.
* Humphrey, J. P. 1984. ''Human Rights and the United Nations: A Great Adventure''. New York: Transnational Publishers.
* Magnet, J.E. 2001. ''Constitutional Law'' (8th ed.).
* Silver, Cindy. 1995?. ''Family Autonomy and the Charter of Rights: Protecting Parental Liberty in a Child-Centred Legal System'', in series, ''Discussion Paper fthe Centre for Renewal in Public Policy'' 3. Gloucester, ON: Centre for Renewal in Public Policy. p. 27.

External links

Canadian Charter of Rights and Freedoms
– the Charter, via Department of Justice Canada

– the Charter, via Department of Justice Canada (Archived)

– online encyclopedia about the Charter, via Department of Justice Canada
Building a Just Society: A Retrospective of Canadian Rights and Freedoms
– via Library and Archives Canada

Charter of Rights Decisions Digest
– via Canadian Legal Information Institute
Constitutional Law of Canada
– via Professor Joseph E. Magnet, University of Ottawa
Fundamental Freedoms: ''The Charter of Rights and Freedoms''
– ''Charter of Rights and Freedoms'', includes video, audio, and the ''Charter'' in over 10 languages

{{Constitution of Canada, patriation
Constitution of Canada

1982 in law
National human rights instruments
Political charters
Human rights in Canada
1982 in Canadian law
1982 documents