Canadian Charter of Rights and Freedoms

The inclusion of a charter of rights in the constitution was a much debated issue. Prime Minister Pierre Trudeau very much wanted it but many of the provincial leaders did not. Trudeau thus was forced to include the notwithstanding clause to allow provinces to opt out of certain areas of the charter. Pressure from the left in the country, especially the New Democratic Party, prevented Trudeau from including any rights protecting private property.

Similarity and differences with other Human Rights Instruments

Although the Charter was criticized by some in the Canadian Parliament for being too much like the United States Bill of Rights, its emphasis is focused on collective rights (unlike the US Bill of Rights which values individual rights). Members of Parliament saw the movement to entrench a charter as contrary to the British model of Parliamentary supremacy. Ironically, some would say that the European Convention on Human Rights has now limited British parliamentary power to a greater degree that the Canadian Charter limited the power of the Canadian Parliament and provincial legislatures in Canada when it was adopted by the British Parliament in 1982 (though as part of the Canada Act (UK) 1982 it only became law in Canada, not the United Kingdom).

It is no accident that the Canadian Charter is similar to the European Convention on Human Rights (ECHR), specifically in relation to the limitations clauses contained the European Convention. The underlying reason for this fundamental similarity between the ECHR and the Charter lies in the fact that the Canadian Charter and the European Convention are both inspired by the Universal Declaration of Human Rights. A key drafter of both the Universal Declaration and the Canadian Charter was Professor John Peters Humphrey, the Canadian human rights expert and first Director of the United Nations Human Rights Division. It is because of this similarity with European Human Rights law that the Supreme Court of Canada turns not only to the Constitution of the United States case law but also the European Court of Human Rights cases in interpreting the Charter.

The Charter limitations clause states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as hate speech and obscenity. It has also been used to protect the unreasonable interference of government in the lives of people in a free and democratic society by defining these limits.

Regarding similarities with the ECHR there are various limitations in the European Convention that are similar to the limitations clause in the Charter. These limits include:

• limits on public trial rights that have also been recognized by the Canadian courts (art. 6(1) ECHR);
• limits on privacy rights as are accepted as in Canada (Article 8(2) ECHR: except such as is in accordance with the law and is necessary in a democratic society);
• limits on freedom of thought and religion similar to Canadian limitations(art. 9(2) ECHR: subject only to such limitations as are prescribed by law and are necessary in a democratic society);
• limits on freedom of expression are accepted as in Canada (art. 9(2) ECHR: subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society);
• limits on freedom of peaceable assembly and free association are accepted in Canada as well (art. 11{2) ECHR: No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society).

However, unlike the Canadian Charter art. 18 of the European Convention limits all these specifically enumerated restrictions: The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed. Perhaps the Canadian Charter's single overriding limitation upon all of the enumerated rights is much more general limitaton than the specific limiations in the European Convention. This general limitations clause definitely makes the Canadian Charter distinct from its American counterpart.

Additional Features of the Charter

Additionally, the Canadian Charter contains a provision, called the notwithstanding clause, by which some guarantees can be overridden through a legislative enactment limited to five years, though such an override can be reauthorized.

While the Charter was adopted in 1982, it was not until five years later in 1987 that many of the provisions in it came into effect.

Under the Charter, all Canadians enjoy the following rights:

equality rights: equal treatment before and under the law, and equal protection and benefit of the law without discrimination

democratic rights: the right to participate in political activities, to vote and to be elected to political office and similar rights

legal rights: the right to be presumed innocent until proven guilty, the right to retain a lawyer and to be informed of that right, and the right to an interpreter in a court proceeding are examples

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

language rights: generally, the right to use either the English or French languages in communications with Canada's federal government and certain of Canada's provincial governments

minority language education rights: generally, French and English minorities in every province and territory have the right to be educated in their own language

All Canadians also enjoy fundamental freedom of religion, freedom of thought, freedom of expression and freedom of the press, peaceful assembly, and freedom of association subject to the reasonable limitations clause (see above) and the notwithstanding clause.

Before the Charter came into effect, other Canadian laws and legal precedents protected many of the rights and freedoms that are protected under the Charter. These were sometimes known as the Implied Bill of Rights. The Canadian Bill of Rights, which the Canadian Parliament enacted in 1960 had many of these rights, but it was only applicable to the federal government and was not considered part of the Constitution of Canada like the Charter.

See: List of Supreme Court of Canada cases.

Links

• Canadian Charter of Rights and Freedoms - at Department of Justice Website
• Canadian Charter of Rights and Freedoms
• Canadian Bill of Rights, 1960
• Constitutional Law of Canada by Professor Joseph E. Magnet, University of Ottawa

Bibliography

• Hogg, P. W., Constitutional law of Canada 4th ed. (Carswell: Scarborough) with Supplement to Constitutional Law of Canada (2002-)
• Humphrey, J.P., Human Rights and the United Nations: A Great Adventure (New York: Transnational Publishers, 1984)
• Beaudoin G.-A. & E. Ratushny, The Canadian Charter of Rights and Freedoms 2nd ed. (Carswell, Toronto, 1989)
• Magnet, J. E., Constitutional Law 8th ed.(2001)

Referenced By