In 1981 Prime Minister Pierre Elliot Trudeau led Canada's Parliament in repatriating Canada's Constitution. The Constitution Act, 1982 was adopted by the House of Commons and the Senate and became the law of the land. The new Act included The British North America Act, 1867 (BNA Act) which was passed in Great Britain in 1867 and created Canada. The BNA Act (renamed The Constitution Act, 1867) set out the division of power between the federal and provincial governments. On July 1 each year we celebrate Canada Day to commemorate the BNA Act.
The Constitution Act, 1982, however, also included the Canadian Charter of Rights and Freedoms which is now the supreme law in the land which guarantees fundamental freedoms for all individuals residing in Canada, including citizens, landed immigrants and even refugees. This Charter of Rights and Freedoms is a check on the power of government to interfere with the rights of an individual.
The rights outlined in section two read as follows: Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of Assembly; and (d) freedom of Association.
These fundamental freedoms guarantee each individual religious freedom and political rights which cannot be infringed upon by any government. The only limit is that set out in Section one which states: The Canadian Charter of Rights and Freedoms guarantees the rights set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The Supreme Court of Canada defined the legal test for what is a reasonable limit in a free and democratic society in 1986 in a case called Oakes. There have been many conflicts between the Charter of Rights and Freedoms and laws passed by the Federal government or the ten provincial governments.
The Charter provides a safeguard for the individual so that government does not arbitrarily, or unintentionally, infringe upon the rights of the individual. Sometimes this limit means a check on democratic power which affects individual rights. This also means that the majority cannot infringe upon the rights of a minority without good cause and the infringement must be upheld in a court of law as a limit that can demonstrably be justified in a free and democratic society.
Minority groups and holders of unpopular opinions can look to the protection of the Charter against infringements of their rights. What the Charter does not allow is for any group or government body to restrict the rights of a minority. So by protecting the rights of others to say and do things that you may not approve, you are protecting your rights for things that others, even the majority of the population or the government may disapprove. Many opinions and political views that were at one time unpopular, and even persecuted, eventually become accepted. The Charter of Rights helps protect the individual against any infringement by the group.
An example of the operation of the Charter is the Issam Yamani case. The Canadian Government, through the Justice Department, sought to limit the rights of Mr. Yamani and deprive him of his right to Canadian Citizenship for working with some Palestinian charitable organizations because of their alleged ties to terrorist groups. The Federal Court threw out the charges because they infringed upon Mr. Yamani=s rights and freedoms, including his right of freedom of association. The fact that the Canadian government and well-respected relief organizations also worked with the same groups also helped in winning that case.
The Charter in section 6 guarantees mobility rights for all citizens and permanent residents. This allows freedom of movement within Canada and prohibits the imposition of geographic restrictions on newcomers.
Equality rights are guaranteed in Section 15. This section guarantees that men and women are treated equal under the law. So it is not possible to charge a woman with a criminal offence if a man would not be charged. The result of this principle was that the charge against Gwen Jacobs for going topless was thrown out of court because a man would not be charged for doing the same thing. There is an exemption for affirmative action programs.
The equality section also guarantees that same sex couples are treated the same under the law as heterosexual couples. The legal result of this protection was the extension of spousal benefits to same sex couples as the legal challenge to the denial of benefits to same sex couples went to the Supreme Court of Canada. The Supreme Court upheld the findings of the Ontario Human Rights Commission and the Ontario Court of Appeal that it was unlawful to treat same sex couples differently than heterosexual couples. The Ontario Government of Mike Harris out respect for the Rule of Law, the Supreme Court of Canada and the Charter of Rights and Freedoms, passed legislation in the Spring of 1999, with the support of all political parties, granting equality to all couples regardless of their sexual orientation.
While many people do not prove of alternative lifestyles, the legal principle of equality is sound and treats all people fairly. After all everyone may not approve of things you or I say or do but that does not give them the right to force their views on us unless it is illegal, for example something slanderous or libelous.
Legal rights are protected in sections seven through 14 of the Charter. These protections include the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Fundamental justice means that each individual is entitled to a fair hearing and that legal procedures are followed before they can be detained and that legal rights are recognized and only taken away in accordance with the law.
The Charter sets out other guarantees including the right not to be arbitrarily detained or imprisoned, the right to legal counsel and to be informed of that right and the right to have the validity of the detention reviewed by a court and to be released if the detention is not lawful. The Charter also guarantees the right to a speedy trial, the right not to be compelled to be a witness against yourself and the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
The Charter gives a lot of protection for someone accused of committing a crime from abuses by the police and the Justice system. The Courts take these protections very seriously and if they are violated sometimes the Court will set the person free even if they may be guilty of an offence. This way the Courts protects the individual and helps insure that the police treat individuals with respect and guarantees our rights.
As a result of these protections and the independence of the Courts and respect for the Rule of Law Canada has a human rights record that is a model for the World.
There is a notwithstanding clause in The Canadian Charter of Rights and Freedoms found at section 33 which empowers a Legislature to expressly declare a law legally valid even though it violates the Fundamental Freedoms set out in sections two to 15.
Governing bodies in Canada are very hesitant to violate the rights and freedoms guaranteed in the Charter of Rights and Freedoms. To date only the Province of Quebec has invoked the notwithstanding clause to protect its controversial language legislation. No other government in Canada has expressly overridden the rights and freedoms accorded to individuals in the Charter of Rights and Freedoms.
This short summary is not to be considered definitive about all the law involving The Canadian Charter of Rights and Freedoms. To get a proper legal opinion please consult a lawyer.
Ed Corrigan is a London lawyer who specializes in Citizenship and Immigration law.