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Canadian Charter of Rights and Freedoms
Summary

Canadian Charter of Rights and Freedoms

A right is a legal, moral, or social claim that people are entitled to, primarily from their government. Freedom is a right-the right to live your life without interference by the government. Freedoms do have limitations that are necessary to protect public safety and the fundamental rights and freedoms of others. The Declaration of Independence (United States, 1776) and the Declaration of the Rights of Man (France, 1789) declared that all people have inalienable rights to equality and freedom.

The first attempt to codify rights and freedoms across Canada was the Canadian Bill of Rights a statute enacted in 1960 under the leadership of Prime Minister John Diefenbaker. The Bill of Rights had limitations, however, because it was a federal statute and it applied only to matters under federal jurisdiction. In addition, the statute had the same status as other statutes. It did not take precedence over any other statute. It could also be amended, or even eliminated by a majority vote in the House of Commons.

When Canada’s Constitution was patriated in 1982, the Constitution Act included the Canadian Charter of Rights and Freedoms. Having rights and freedoms entrenched in the Constitution ensures that they are protected, regardless of the government in power. It also means that these rights and freedoms become constitutional law, which overrides all other laws.

Not all premiers agreed with entrenching rights and freedoms in the Constitution. Some felt that entrenching certain rights and freedoms would reduce the law-making powers of Canadian governments. Agreement on the terms of patriation was finally reached in 1981, but only on condition that a clause be added that allow the provinces some power to override or legislate around the Charter. Consequently, s. 33 of the Charter, known as the notwithstanding clause, gives the federal and provincial governments limited power to pass laws that may violate freedoms or rights in the Charter. One of the early uses of the notwithstanding clause took place in 1988 when the Supreme Court of Canada ruled that Quebec’s Bill 101, which required all public signs to be in French only, was invalid because it infringed on freedom of expression. The Quebec government responded by bring in another bill and invoking the notwithstanding clause to allow the “French only” law to stand.

Jurisdiction, Enforcement, and Guarantee

The Canadian Charter of Rights and Freedoms has 34 sections that define the relationship between people, organizations, and companies in Canada and the government. The Charter does not have jurisdiction to protect your rights if discrimination occurs in situations that do not involve the government. For example, if a superintendent refuses to rent you an apartment because she doesn’t like your looks, you cannot rely on the protection of the Charter. Protection in this situation should be sought under a provincial human rights code.

The Supreme Court of Canada has often been called the “guardian of the Constitution,” because the nine justices that make up the Supreme Court are responsible for interpreting and enforcing the Charter. Today in many cases appealed to the Supreme Court of Canada, the issue of whether a right has been violated is paramount.

The Fundamental Freedoms

Section 1 of the Charter guarantees certain rights and freedoms, while making it clear that these rights and freedoms are not absolute. They are subject to “reasonable limits.” For example, your right of freedom of expression is limited in that you are not allowed to make libelous statements about another person. Freedom of religion is also guaranteed under the Charter, but this freedom is limited by the rights and freedoms of others. For example, if parents refuse to give permission for their child to have a blood transfusion because their religion prohibits such procedures, the courts may order that the child must be given a transfusion if it could save his or her life. The parents may argue that their right to freedom of religion has been violated, but a child’s right to survive comes first in the eyes of the law. Other freedoms under the Charter include freedom of conscience, freedom of thought and expression, and freedom of peaceful assembly.

Rights

Under the Charter, certain rights are now guaranteed that, in the past, may only have been recognized through ordinary statutes. No right, however, is absolute. Rights under the Charter include democratic rights (the right to vote, for example), mobility rights (the right to move in and out of the country and between provinces), legal and equality rights, and language and general rights.

Anyone in Canada who becomes involved with the criminal justice system is guaranteed certain basic protections under the Charter. Sections 7 to 11 of the Charter cover all areas of criminal law-from investigating a crime, ensuring procedural fairness at trial, and deciding about use of evidence through to sentencing convicted offenders.

Section 15 states that every individual is equal before and under the law, with the right to equal protection and benefit of the law. These rights are to be applied without discrimination. Under s. 15 (2), however, the government can set up programs to ameliorate, or improve the conditions of certain disadvantaged groups or individuals even if these programs are seen as discriminatory to the majority. For example, a law that provides for preferential parking for handicapped persons is acceptable.

Language rights in the Charter affirm that Canada is a bilingual country and French and English have equal rights as official languages in Parliament and federal government agencies. English-speaking and French-speaking minorities in any province also have the right to have their children educated in their own language, provided sufficient numbers warrant it.

Section 25 is intended to protect the culture, customs, traditions, languages, and other rights and freedoms pertaining to Aboriginal peoples.



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