Politics - Federal

Canadian Charter of Rights and Freedoms Turns 30

By Ryan McGreal
Published April 18, 2012

Yesterday was the 30th anniversary of the signing of the Canadian Charter of Rights and Freedoms.

When I was eight years old, I came home from school with a large poster that reproduced the newly-signed Charter. My parents pinned it to my bedroom wall, where it eventually shared space with the cover of Moving Pictures by Rush, Def Leppard looking pouty, a McDonnell-Douglas F-14, Pope John Paul II, and the silhouette of Jason from Friday the 13th.

Canadian Charter of Rights and Freedoms (Image Credit: Toronto Star)
Canadian Charter of Rights and Freedoms (Image Credit: Toronto Star)

I don't know why it left such an impression on me at such a young age, but the Charter has always been a big inspiration and source of pride. It was Canada growing up as a nation, taking charge of its own destiny, asserting in plain language that certain human rights were fundamental and inviolable.

Canada's legal system inherits the British common law tradition (though contract/tort law in Quebec follows the Justinian tradition). In the common law system, judges rule based on the decisions of previous courts, following and upholding a large body of precedent to ensure consistency and fairness in the application of the law.

In the hierarchy of Canadian law, statutes (laws passed by legislatures) and regulations supersede common law. Traditionally, Canadian judges were extremely reluctant to overturn statutes, even if they were unfair to common law traditions. As such, Canadians' rights were vulnerable to legislative fiat.

The Charter changed that. It sits at the top of the Canadian law hierarchy, superseding statute and common law alike at both the Federal and Provincial/Territorial level. If a tradition or a legislative act is determined to violate Canadians' basic rights - particularly under Section 2 (Fundamental Freedoms) and Section 15 (Equality Rights) - a court can strike down the law as unconstitutional.

Over the past 30 years, the courts have struck down a number of statutes and common laws that violated Charter rights, including restrictions on access to abortion, restrictions on religious expression and dress, denial of collective bargaining rights, prohibitions on same sex marriage, and the right of convicted prisoners to vote.

The Charter enshrines human rights protection and equality for women, minorities and other vulnerable Canadians - including lesbian, gay, bisexual and transgender Canadians, through court decisions that extended the list of prohibited grounds for discrimination in Section 15.

The sections on legal rights have also driven changes to the way police services operate, strengthening protections for personal privacy, freedom from unreasonable or arbitrary detainment and seizure, and due process on arrest.

In the 30 years since the Charter was signed on April 17, 1982, legislatures still have the right to pass laws - but thanks to the Charter, those laws must be so constructed that they do not curtail our rights and freedoms. Where they do, courts now have the power to strike them down.

Of course, nothing is perfect and the Charter has generated its share of controversy, including the requirement that government be accessible in both official languages everywhere in the country, and the so-called "notwithstanding clause" in Section 33, a distinctly Canadian political compromise that grants provincial and territorial governments the right to pass a law that overrides Section 2 or Sections 7-15.

The government of Quebec notoriously applied the notwithstanding clause in 1987 to its French-only language law, though it eventually rewrote the law to conform to the Charter. The government of Alberta passed a law in 2000 banning same-sex marriage and tried to uphold it via the notwithstanding clause, but it was struck down because provincial governments don't have the power to define marriage.

All in all, the Charter has done far more good than harm. One of its finest qualities is that it is succinct and accessible as well as comprehensive. The language is straightforward, and the total length is less than 2,500 words, including headings. If you haven't read it - or haven't read it recently - you really should.

Ryan McGreal, the editor of Raise the Hammer, lives in Hamilton with his family and works as a programmer, writer and consultant. Ryan volunteers with Hamilton Light Rail, a citizen group dedicated to bringing light rail transit to Hamilton. Ryan writes a city affairs column in Hamilton Magazine, and several of his articles have been published in the Hamilton Spectator. He also maintains a personal website and has been known to post passing thoughts on Twitter @RyanMcGreal. Recently, he took the plunge and finally joined Facebook.

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By Tybalt (registered) | Posted April 18, 2012 at 10:09:06

I was there, in the crowd, when the Queen signed the new Constitution Act. A great day.

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By TreyS (registered) | Posted April 18, 2012 at 10:13:28

I like the interesting variety of posters on your wall.

Nice piece.

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By David Harvey (anonymous) | Posted April 18, 2012 at 10:34:40

Nicely written Ryan.

I had the same poster, though I was in high school at the time. (I also saw Rush's Moving Pictures tour at Maple Leaf Gardens, but that's another story).

It's worth noting that the equality rights section didn't come into force until 3 years later, in 1985. It was thought at the time that it would take governments some time to review and change all their statutes to conform to the new equality provisions.

That decision set the tone for a practice that continues to this day - one that I often find troubling. Courts that decide to strike down laws as unconstitutional frequently suspend their decisions for a period of time to allow the government to adjust the law to bring it into conformity with the Charter. For example, just last week, the Supreme Court of Canada found that the provision of the Criminal Code (s.184.4) which permits the police to wiretap without a warrant in emergency circumstances was unconstitutional, as it violated the protections against unreasonable search and seizure found in Section 8 of the Charter. However, the Court suspended its declaration for a period of one year to allow Parliament to redraft the provision.

While these decisions may appear to be sensible compromises to prevent a legislative vacuum, one must realize what they in fact mean: the Court has determined that the law violates fundamental rights and freedoms guaranteed in the Charter, but it will permit the Government to continue to violate those rights for another year. This conflicts with the commonly held notion that the rights in the Charter are sacrosanct.

Other sections of the Charter, particularly sections 1 and 33, permit limits and restrictions on rights in circumstances deemed appropriate by Courts and Legislatures. The principles underlying the application of these sections are contextual, and can vary in accordance with societal norms and values. Often this is progressive, as seen with the gradual extension of equality rights to gays and lesbians. It can be regressive as well, however. In the post-9/11 world of enhanced security, intrusions on rights that would not have previously been tolerated have become the new normal, both in practice and in law.

We as citizens must never become complacent with respect to the rights and freedoms set out in the Charter. Our rights and freedoms as citizens did not simply come into existence, once and for all time, in 1982. Rather, the Charter provides a framework of principles upon which we agree to govern ourselves. We must uphold and defend that agreement, by respecting the rights of others in our own actions, and by demanding that our governments do so as well. The Charter does not stand alone as our shield - without people willing to forcefully defend its principles, it's just a poster hanging on a wall.

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By Shempatolla (registered) - website | Posted April 18, 2012 at 14:27:06

The Charter however is a flawed document that has left far too many powers with the judiciary who are unelected and unaccountable. This has been evident for years as a left leaning Supreme Court has had no problem effectively making policy instead of ruling on it. There are no property rights enshrined in the Charter which is why we see things like David Cheng and Mr Poolapady of Toronto arrested and charged by police for defending their property.

I think it is worth noting also that while the Charter is 30 and that is great, we should acknowledge that Canadians basic rights go not only back to the British North America Act but trace its origins and basis in Common Law back to the Magna Carta of 1215. Now that is cool.

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By Michelle Martin (registered) - website | Posted April 18, 2012 at 23:04:37

It was part of my job, back when I worked developmental services front line, to review a plain language version of the Charter yearly with the people I supported.

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