The Roles of Parliament and Courts
Being a colony of Britain in the past, the Canadian Parliamentary System has got its roots entrenched in the British Parliamentary System, a democratic model that was evolved over hundreds of years. The constitution of Canada defined in the British North America Act of 1867, which later came to be known as the Constitution Act enacted a federal form of government, where the citizens of the nation will be governed by Ottawa based central government and the provincial governments. One of the major characteristics of the Constitution Act was that it could only be amended by Britain as it was an act of the British Parliament. In 1960, the Canadian Bill of Rights was passed by the federal government, but proved not helpful as it was not a part of the constitution. . The 1960s also witnessed the quiet revolution of Quebec over the language, social policies and the concern over the natural resources. In order to achieve two goals- to bring the constitution home and to develop a working partnership between the nation’s two founding races, the government of Pierre Trudeau initiated the process of patriating the Constitution and include a new Charter of Rights and Freedoms. After years of hearings and discussions, the Canada Act of 1982 was formulated and received the approval of Britain which finally gave Canada the control over its constitution . The Charter, now a part of the Constitution focused primarily on seven categories- democratic rights, mobility rights, fundamental freedom, language rights, equality rights, legal rights and minority educational rights .
This essay will analyze the impact of the Charter of Rights on Canadian society as well as the roles of parliament and courts. The following section will provide the explanation for the reasons that led to the charter. Post that, the essay will analyze the key tenets of the Charter its outcome and impact on the Canadian society.
The Road to the Charter
As mentioned in the introduction, various laws including the Bill of Rights of 1960 were responsible for the protection of freedom and rights prior to the introduction of Charter of Rights. But many of them, were not a part of the constitution and did little to protect the interests of the varied and culturally diverse cross sections of the Canadian population. Also, some of these laws, including the Bill of Rights were part of the federal set of laws and were inapplicable at the provincial levels.
Along with the patriating process of Canada’s Constitution, Trudeau’s government also introduced a new Charter of Rights and Freedoms during the early 1980s . In addition to the seven primary focus areas, the Charter also targeted the reduction of parliamentary supremacy and bolstered the power of courts by providing the courts with the authority to nullify any legislation which goes against the spirit of the Charter. Many questioned the charter, the major concerns being the power of courts, ways to amend the charter, if required in the future and concerns over the restriction of power of the provinces.
Eventually, the provinces agreed on the charter on the condition that allowed both the federal and provincial legislatures to exempt their laws from selected sections of the Charter for a maximum period of five years , which in due course was used only a handful of times. The clause is still available to the governments, but the use is very rare. The amendment of the Charter was allowed, only in situations when more than 50 percent of the nation’s population represented together by the federal parliament and the provincial legislatures gave the nod for amendment . Since its implementation in 1982, the Charter has been amended only twice till date.
Finally, after months of public debate and scrutiny, the Charter came into effect as a part of the Constitution Act of 1982 when Queen Elizabeth II signed the Canada Act into law on April 17th 1982 .
Trudeau’s Charter of Rights
Critics’ fear the Charter of Rights impart too much of interpretive powers to the judges as the language of the Charter is generic and not specific. That concern aside, the Charter provides protection to the minorities and is applicable to all-both citizens as well as the new entrants into the nation. But a few rights including the voting rights as well as the right to enter and leave the country are limited only to its citizens. Some of the protections that the Charter guarantees are mentioned below -
Freedom of religion and language rights
Freedom of thought and expression, freedom of press, freedom of peaceful assembly
Right to participate in politics and right to elect a democratic government
Freedom to enter, move around and leave Canada
Right to life, liberty and security
Equality and Gender rights
Outcome of the Charter of Rights
The Charter of Rights has been widely viewed as one of the most significant landmarks in the history of Canada. The Charter has re-shaped the Canadian society in multiple ways-both big and small and brought comprehensive changes to the parliament as well as to the courts. Three of the most important factors or clauses that made the Charter the focal point are-
The Notwithstanding Clause: Allowed legislators to supersede any protected rights. The Parliament and the legislatures were permitted to supersede the court judgments for a period of 5 years or eternity, if necessary .
Three-year Moratorium on Equality Rights: It was conceived to provide the Parliament and the provincial legislatures the time and the opportunity to draft laws which are in compliant with the Charter .
The Court Challenges Program : The program expressed the parliament’s commitment in enforcing the rights and making the courts accessible to the Canadian society. This also helped the courts by providing them with high quality Charter litigation .
As mentioned above, the Charter has proved immensely beneficial to the Canadian society. It has made the society more just and encrypted equality in its culture. The Charter ensured a better criminal justice system, protected the language rights of minorities and ensured the presence of necessary mechanisms to guarantee the peaceful co-existence of the nation’s diverse groups. The Charter has rubrics of security and equality of its citizens and promised accountability in the distribution of medical services. The Charter also ensures accountable governance and protection of minorities and marginalized groups. It also created a platform for democratic debate on a wide range of topics like civil liberties or freedom of expression. In short the Charter, as the former Prime Minister Jean Chretien put it “makes everyone more comfortable as a citizen” .
The Charter clearly set out a legal and social revolution in the years following its implementation. Since the first Charter case- the Skapinker case of 1984, it has been used widely by courts across the country. In fact, the Charter’s influence was not just limited to the courts, but also to the entire strata of the society including lawyers, members of the parliament and legislatures, officials and the public. The Charter, in its first three decades brought about revolutionary changes to many aspects of Canadian Life. The Charter 7guaranteed personal liberty and Supreme Court’s ruling against abortion in 1988 transformed the reproductive rights of women . Similarly, the Charter 15 that talks about anti-discrimination clause led to a series of orders from Supreme Court that positively impacted homosexuality and this ultimately led to the legalization of the same-sex marriage in 2005 . The Supreme Court’s rulings based on the Charter also strengthened the natural resource rights as well as the Aboriginal fishing .
The Charter has elevated the position of courts in the country and imparted more powers on them to make social and legal changes as well as to nullify any decision by either the parliament or the legislative assemblies that is against the spirit of the Charter. Many supported this new scenario that it necessitated a dialogue process between the courts and the parliament, which is beneficial to the nation. Critics however were concerned about the diminished power of the law makers.
The essay has made an analysis of the Charter of Rights, including the circumstances that led to it, the major clauses and its impact on the Canadian society. First of all, the Charter enabled Canada to ‘own’ its constitution by liberating it from the British control. Secondly, the Charter helped to unify a highly diverse Canadian society that comprised of the English and French settlers, migrants from Eastern Europe as well as the native Aboriginals. The Charter ensured equality and the freedom to think, express and act. Today, the Canadian democracy is a showcase symbol to the world. The nation boasts of the highest quality in institutional governance and motivates the non-democracies of the world to adopt the system which grants its people to elect their representative in a fearless environment. For a nation to achieve this, a strong judiciary is of paramount importance as the courts under eminent judges and lawyers keep a close watch on the functions of the parliament and take corrective actions as and when required in order to keep up the spirit of the Constitution. Canada, under Pierre Trudeau did just this and that transformed the nation for good. The investments made for building the rule of law had been considerable, but the benefits reaped is doing a complete justice to the investments. It can be said with utmost conviction that the Charter of Rights signaled the emergence of a more democratic and egalitarian Canada.
Arbour, Louise. 2012. How the Charter helped define Canada. September 6. Accessed February 7, 2016. http://www.theglobeandmail.com/opinion/how-the-charter-helped-define-canada/article4239318/.
Foot, Richard. 2015. Canadian Charter of Rights and Freedoms. April 13. Accessed February 6, 2016. http://www.thecanadianencyclopedia.ca/en/article/canadian-charter-of-rights-and-freedoms/.
Justice Education Society. 2013. Canadian Charter of Rights and Freedoms. Accessed February 6, 2016. http://www.lawlessons.ca/lesson-plans/1.3.overview-of-the-canadian-charter-of-rights-and-freedoms.
McLachlin, Beverley. 2007. "The Charter 25 Years Later: The Good, the Bad, and the Challenges." Osgoode Hall Law Journal 365-377.
Parliament of Canada. n.d. Canadian Charter of Rights and Freedoms. Accessed February 6, 2016. http://www.lop.parl.gc.ca/About/Parliament/Education/ourcountryourparliament/html_booklet/canadian-charter-rights-and-freedoms-e.html.
The Charter of Rights and Freedoms. 2006. The History of the Charter. Accessed February 6, 2016. http://www.charterofrights.ca/en/26_00_01.