In French, the Canadian charter of rights and freedoms, also known as Charte Canadienne des droits et libertés and common among people known as the charter in Canada, is a bill of rights embedded in the constitution of Canada.
The Canadian charter of rights and freedoms was added to the constitution of Canada act, 1982, formed the first part of the Canadian constitution, and was signed by Queen Elizabeth II of Canada on the 17th of April in 1982.
The Canadian charter of rights and freedoms is a very crucial organ of the constitution of Canada as it ensures the running of a free and democratic society in Canada as the provisions in the charter guarantee democratic government, equality of rights, fundamental justice, and fundamental freedoms.
History of the Canadian Charter of Rights and Freedoms
On the completion of a century of the federation of Canada in the year 1967, there was an idea among the government leaders to bring in law recognized constitutional reforms.
Constitutional reforms that could make a more democratic society in Canada could better guarantee the existing constitutional provisions and guarantee basic rights and freedoms to the people. These reforms could ensure the equal benefit of the rights and liberties to all, irrespective of their national or ethnic origin.
The aim of the reforms was not only to guarantee these rights and freedoms but also to liberate Canada from the British parliament’s authority, known as the patriation, to make the sovereignty of Canada even stronger. Attorney general of that time, Pierre Trudeau, appointed Barry Strayer, a law professor, to research a bill of rights.
Barry Strayer’s report had advocated for several changes and ideas that were reflected in the charter, like the protection of both English and French languages, the right to the minority language, educational facilities and minority language instruction, and security of other official languages of Canada; Strayer also advocated for exclusion of economic rights and inclusion of limited rights, the Canadian charter of the rights and freedoms limits this rights if the legislature and the parliament to advance equality of status or use of English and French.
Barry Strayer was made the director of the constitutional law division in the privy council’s office in 1968, and later in 1974, he was made the assistant deputy minister justice. During his years of service in both posts, he played a crucial role in writing the later adopted charter.
Even before the Canadian charter of rights and freedoms was enacted, there were various laws for granting privileges and liberties, like the Canadian Bill of Rights passed in 1960.
Still, the Canadian bill of rights had many shortcomings as it was just an act of parliament and applied only to the federally elected government. The Supreme Court of Canada was not very wide in its interpretation. Also, the Canadian bill of rights did not have all the rights and freedoms granted by the charter; hence the Canadian charter of rights and freedoms was a document that was a source of change for Canada’s legal rights.
The Constitution Act 1982
Meanwhile, Pierre Trudeau became the leader of the liberal party and also the prime minister of Canada. However, he still advocated for a constitutional bill of rights. The government of the federation and the government of the provinces had discussions to create such a bill of rights. These discussions resulted in the formation of the Victoria Charter in 1971, but the Victoria Charter was never implemented.
Despite this, the then prime minister Trudeau promised to continue his efforts during the Quebec referendum, and his actions became successful in 1982 when the British parliament enacted the constitution act 1982. But the addition of the Canadian charter of rights and freedoms was a much-debated issue.
In October 1980, Trudeau announced on television his demand to constitutionalize the bill of rights which would guarantee from the federal government a supreme law for equal protection of the rights and liberties to all people, equality rights for all such distinct cultural institutions present in Canada but a charter that would also expressly declare such reasonable limits prescribed on these rights and freedoms.
Canada has a parliamentary form of government, and judges too did not have enforced rights and freedoms of people in the past well, so this was pondered upon whether the judiciary should be assigned as the enforcers of the Canadian charter of rights and freedoms as the judiciary could guarantee fair and public hearing of civil, criminal and penal matters while adhering to Canadian or international law.
Still, the Conservative party members argued against it. They suspected the judiciary’s bias towards the liberal party and pined against the judiciary as provincial leaders opposed a limit to their powers.
After long debates, the suggestion of the Conservative party was accepted, and the Trudeau government agreed to form a committee of members of parliament and senators to examine the bill of the Canadian charter of rights and freedoms.
As the process moved forward, more and more unique features were added to the Canadian charter of rights and freedoms like equal rights and privileges guaranteed to people with a mental or physical disability, recognition of rights of the people of all sex, male and female persons, and recognition of the fundamental freedoms of people of all national or ethnic origin.
Additions to the Charter Post-1982
Though the charter was adopted in 1982, several additions were made to it, which proved to be a crucial organ of the charter as a whole. Like the most critical provisions of equality, rights were added in 1985 when section 15 of the charter was added.
The delay in the insertion of section 15 was that the provincial governments were reviewing the pre-existing provisions and striking out the pre-existing unconstitutional conditions.
The Canadian charter of rights and freedoms proves to be a dynamic document that reflects society and is a source of changes and affirmation. Section 16.1 was added to the charter in 1993, and it clarified that the English and French linguistic communities are equal.
It particularly mentioned the English and French linguistic communities of New Brunswick have equal protection of their rights. It seeks to ensure that the provincial government of New Brunswick gives equal rights and also equally protect legal rights of both English and French linguistic minority population.
The Province of Quebec
The province of Quebec was not supporting the charter because of “conflicting interpretation” of the charter. The reason for this unsupportive attitude of the province could have been the leadership of Parti Quebecois, a sovereign and social-democratic political party in the province.
It was alleged that Parti Quebecois was uncooperative towards the Canadian charter of rights and freedoms because they were committed to their demands for gaining sovereignty for the providence of Quebec.
It has also been alleged that this uncooperative attitude of the Parti Quebecois was also due to them not being included in the negotiation process between all the members of parliament and the senates.
They thought these negotiations and accords to be to centralists. The members of Parti Quebecois also objected to the minority language education rights. Apart from opposing the minority language education rights, Parti Quebecois also opposed mobility rights.
Meech Lake Accords and Charlottetown Accords
Mech lake Accords and Charlottetown accords were the two failed attempts by the Canadian federal government to amend the constitution of Canada. Due to the opposition of the province of Quebec to the partition package, the effort to amend the body through these two accords failed.
The Meech lake accords were an attempt by the government of Canada to persuade the province of Quebec too, though symbolically, but endorse the amendments made in the constitution of Canada in 1982. These negotiations were started by the then prime minister of Canada, Brian Mulroney, along with the premiers of Canada’s ten provinces.
The lack of involvement from the side of citizens and the effect of these accords on the future of federalism in Canada led to criticism of the Meech lake accords from various factions of the society in Canada like many feminist activists and indigenous groups and even the former prime minister of Canada, Pierre Trudeau which was one of the main oppositions to these changes.
Charlottetown accords were a set of proposed amendments in 1992, presented by the federal government of Canada and the provincial governments. Still, these amendments also failed to be a part of the charter as some Canadians felt that these changes would jeopardize their individual and even collective rights.
Moreover, some Canadians even thought that they were left out of the constitutional discussions. These accords aimed to restructure some divisions of power and resolve power-sharing disputes between the federal and provincial governments.
Provisions of the Canadian Charter of Rights and Freedoms
The Canadian charter of rights and liberties aims to solidify and empower a free and democratic society in Canada with the help of its provisions that guarantee fundamental freedoms and ensure real justice to all the people in Canada. The Canadian charter guarantees people their legal rights with the use of the appropriate legislative authority it has.
Section One of the charter, also known as the limitation clause of the Canadian charter of rights and freedoms, allows the federal and provincial governments to infringe some of the rights mentioned in the charter. However, these types of statutes limit freedom, but they also pass the test of proportionality and reasonableness.
The Oakes test is applied by the Canadian supreme court to see the reasonableness proportionality to either uphold the infringement or declare it constitutionally violative, such as laws made by the federal or the provincial governments to prevent hate speech and defamation.
The rights in the charter are granted either to any legal person or to a resident who can prove their reasonable residency requirements or to only the citizens of Canada, and this Canadian charter does not recognize a company as a legal person.
The charter also guarantees people protection, as rights are granted without proper ability to enforce and protect them. Section 24 of the rights and liberties charter allows the court’s discretion to award remedies to a person whose rights guaranteed under the charter have been infringed.
Section 24 of the charter also gives courts the liberty to exclude some evidence if those pieces were acquired in a way that violated any person’s rights mentioned in the charter.
Section thirty-two of the charter confirms that this document is binding on all the federal governments of Canada, all the territories of Canada, and all the provinces of Canada. Hence the charter applies everywhere in Canada. All the sovereign land in Canada has to adhere to rights and freedoms and uphold the Canadian charter of rights and freedoms.
Section 2 of the Canadian charter of rights and freedoms mentions the “fundamental freedoms. These are the following fundamental freedoms as mentioned in the charter, like the freedom of the press, freedom of religion, freedom of thought, freedom to assemble peacefully, freedom to form and choose an association, freedom of thought.
The democratic rights are mentioned in section 3, section 4, and section 5 of the Canadian charter of rights and freedoms. Section 3 grants the right to vote and participate in federal and provincial-territorial elections in the house of commons.
Section 4 of the charter mentions the maximum duration of the legislative governments and the house of commons, five years. Section 5 of the charter talks about the requirement of the annual sitting of the legislature and the parliament of Canada.
The right to mobility is guaranteed to all Canadian citizens and permanent residents. Mobility rights are mentioned in section 6 of the charter of rights and freedom. These sections give the citizens and permanent residents the right to freely enter, leave and move in Canada.
Legal rights are mentioned from section seven to section fourteen of the charter of rights and freedom. Section seven guarantees the right to life and security to a person, section eight guarantees freedom from arbitrary and unreasonable detention, section ten guarantees habeas corpus and a right to legal counsel to any person in the court of law, it gives the right to a person to get the validity of their detention determined.
Section eleven directs that a person should be presumed to be innocent until proven guilty, section twelve give a right not to be subject to cruel and unusual treatment as punishment, section thirteen guarantees a person’s right against self-incrimination, no person as per the charter should be forced to be a witness against his self.
Equality rights are mentioned in Section fifteen of the Canadian charter of rights and liberties. It can be said that section 15 is the heart and soul of the charter as it promotes that all rights should be guaranteed equally to people under all circumstances, irrespective of their religion, gender, and irrespective mental or physical disability.
Right of language has been guaranteed through section sixteen to section twenty-two of the charter for the rights and freedoms. Section 16 mentions that French and English will be the official language of the federation of Canada and New Brunswick, and section 16.1 guarantees equal cultural and educational rights to both English and French-speaking communities of Canada.
Article 22 of the Canadian charter mentions that the rights to use aboriginal languages and the languages besides French and English sustain despite the right of those languages not being explicitly mentioned in the charter of rights and freedoms.
Article 23 of the charter of rights and freedoms guarantees linguistic rights for minorities; it ensures that certain people belonging to the English and French linguistic minority population have a right to educate their children in different community educational institutions for the preservation and promotion of their cultural and traditional identity.
Other sections of the Canadian charter of rights and freedoms guarantee the right to fair hearings. It also ensures that no person should be denied reasonable bail. It also gives a personal right to be heard fairly in an independent and impartial tribunal.
The test of reasonableness and proportionality should demonstrably justify any restriction on these rights of the charter.
The Charter and the National Values of Canada
The Canadian charter of rights and freedoms can be said as a true reflection of the national values of the country Canada. As it is in its name, it truly reflects Canada’s free and democratic society by guaranteeing the people on the land their basic freedoms and guiding the people on this land towards the principle of liberty and freedom.
This document called the Canadian charter of rights and freedoms truly works as the heart and soul of the Canadian federation. Its dynamic structure functions as a source of affirmation for society. It can be interpreted by the courts and tribunals of the provinces and the federation to empower any individual or any community irrespective of race, religion, and color.
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