Canadian Charter of Rights and Freedoms. I INTRODUCTION Canadian Charter of Rights and Freedoms, guarantee of rights and freedoms granted to Canadians, incorporated as part of the Constitution of Canada in 1982. The charter protects rights of free speech, free expression, and free assembly; guarantees the right to participate in democratic elections; acknowledges the rights of minority groups; and limits the power of the state. The Canadian Charter of Rights and Freedoms is similar in some respects to the Bill of Rights of the United States. As part of the Canadian constitution, the provisions of the charter cannot be superseded by other laws. Any federal or provincial law that conflicts with the charter can be invalidated by Canadian courts in a process called judicial review. The charter significantly changed the Canadian political system. Prior to the charter's implementation in 1982, Canada followed the British tradition of parliamentary sovereignty, meaning that provincial legislatures or the Canadian Parliament could make or unmake any law. II RIGHTS PROTECTED The Canadian Charter of Rights and Freedoms protects several different types, or categories, of rights and freedoms. The major categories include (1) fundamental freedoms, (2) democratic rights, (3) legal rights, (4) equality rights, and (5) language rights. Fundamental freedoms are sometimes called liberty rights because their primary purpose is to restrain government power and ensure individual freedom. These rights include the freedoms of expression, religion, peaceful assembly, and association. Democratic rights guarantee citizens the rights to vote and hold public office. Legal rights include protection of life, liberty, and "security of the person"; freedom from unreasonable search and seizure; prohibitions against cruel and unusual punishment; freedom from arbitrary detention or imprisonment; and the right to avoid self-incrimination. The charter also protects people accused of crimes by guaranteeing them the right to legal counsel, a trial within a reasonable period of time, a presumption of innocence, and reasonable bail. Equality rights prohibit discrimination on the basis of race, national or ethnic origin, religion, gender, age, or disability. The charter also explicitly allows programs that grant preferential treatment to historically disadvantaged groups in an effort to counter past discrimination. This commitment to equality is reinforced by three other provisions, which acknowledge the rights of aboriginal peoples, promote Canada's multicultural heritage, and guarantee equality between men and women. The idea of equality also underlies language rights, the fifth major category of rights guaranteed by the charter. To preserve the rights of the French-speaking minority in Canada, both French and English are recognized as official languages. Citizens are entitled to use both languages in Parliament, the courts, and federal institutions. The charter also grants minority education rights for French-speaking Canadians who live outside of Québec and English-speaking Canadians who live within Québec. III LIMITATIONS The liberties granted by the Canadian Charter of Rights and Freedoms are not absolute. The first section of the charter stipulates that all rights and freedoms are subject to "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Many rights in the charter are conditional. For example, a person only has rights against "unreasonable" search and seizure, so searches and seizures that courts determine to be reasonable are legal. Canadian courts carefully balance the rights of the individual against the needs of society. For example, the Supreme Court of Canada has held that a person's freedom of expression can be limited by the government if the content of that expression is judged to be "hate speech" targeted against a particular group based upon color, race, religion, or ethnic origin. The Canadian constitution allows provincial legislatures or the national parliament to authorize the "section 33 override clause," which allows for the temporary suspension of charter rights. The override has only been invoked on three occasions, twice by Québec and once by Saskatchewan. Québec used the override clause during the 1980s to mandate the exclusive use of the French language in advertisements, in violation of Canada's laws requiring bilingualism; and Saskatchewan used the clause to force striking workers to return to their jobs, in apparent violation of their right to assembly. Other governments have threatened to use the override clause, but usually back down in the face of public opposition. When the Supreme Court prohibited discrimination on the basis of sexual orientation in 1998, the government of Alberta considered invoking section 33 so it could continue policies that discriminated against gay and lesbian workers, but decided against it because of widespread public opposition. IV ORIGINS The Canadian Charter of Rights and Freedoms was enacted as part of the Constitution Act of 1982. Prior to the charter's implementation, Canadians had few constitutionally guaranteed rights. The British tradition of parliamentary sovereignty allowed parliament to pass almost any law it deemed appropriate. Canada's legislatures were not compelled by law to respect individual or group liberties. The charter was preceded by several pieces of legislation that granted limited civil liberties to Canadians. The Constitution Act of 1867 provided some protection for minority language rights. In 1960 the federal government passed a Bill of Rights, but because it was an ordinary statute without constitutional status it could be overridden by other legislation. In a series of cases during the 1960s and 1970s, the Supreme Court of Canada did little to promote the Bill of Rights. The idea of a constitutionally entrenched charter emerged as a response to the failings of the Bill of Rights and as part of negotiations between the federal government led by Prime Minister Pierre Elliot Trudeau and the provinces to revise the Canadian constitution. Trudeau wanted to remove long-standing provisions that required Canada to get British approval before making changes to its constitution. This effort to patriate the Canadian constitution was opposed by some provincial leaders because they feared an expansion of federal power. Others opposed the charter because it departed from the tradition of parliamentary sovereignty and because it would give substantial power to unelected judges. Trudeau believed that the charter would help to get the general public to support him against the provincial premiers. In the 1970s and early 1980s, women, aboriginal peoples, and minorities worked to shape the proposed charter. As a result, the charter explicitly acknowledges their rights and equality. V COMPARISONS WITH LAWS IN OTHER COUNTRIES The Canadian Charter of Rights and Freedoms represents an important break from the United Kingdom, which does not have a written bill of rights and only weak power of judicial review. As a result of the charter's implementation, the Canadian constitution has become more like the Constitution of the United States. However, Canada's charter differs in several important ways from the U.S. Constitution. The Canadian charter guarantees equality and group rights, while the U.S. Bill of Rights emphasizes individual liberty. While Americans failed to pass an Equal Rights Amendment for women, Canadian women successfully mobilized to have their equality acknowledged in the charter. Similarly, the Canadian Charter of Rights and Freedoms explicitly permits affirmative action, whereas such preferences seem to conflict with the Equal Protection Clause of the U.S. Constitution. The charter specifically notes the need to balance the rights of individuals against the needs of the community, and Canadian laws that impinge on civil liberties are justified on this ground. The American constitution has no such clause. This leads American courts to interpret individual rights more absolutely and give less protection to the needs of groups or society at large. For example, Americans have a greater right to express racist or sexist speech than Canadians. Finally, the section 33 override clause allows the Canadian government to have the last word on whether a law should be enforced or not, whereas in the United States the U.S. Supreme Court is the final authority. Contributed By: Richard F. Devlin Alexandra Z. Dobrowolsky Microsoft ® Encarta ® 2009. © 1993-2008 Microsoft Corporation. All rights reserved.
