The Canadian Charter
of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada that
guarantees Canadians certain political rights and civil liberties to all those
in Canada. The Charter was enacted
mostly in 1982, with one section staggered to a year later in 1983. This essay
will thoroughly analyze the Charter of
Rights and Freedom as well as explore the concepts of legal remedies for
denied Charter rights and the
Notwithstanding Clause.
The Charter
is divided into thirty-four sections, which are grouped into eleven
categories: the guarantee of rights and
freedoms, fundamental freedoms, democratic freedoms, mobility rights, legal
rights, equality rights, official languages of Canada, minority language
education rights, enforcement of the Charter,
general points, application of the Charter,
and the citation. Each of these categories will be analyzed in turn, except
the citation, it is just a citation.
The first category of the Charter is the guarantee of rights and freedoms, commonly known as
the Reasonable Limitations Clause. It states that the rights and freedoms
described in this document can be overlooked if there are justifiable and
reasonable limits that are decided as so in court. Since the Charter is part of the Constitution and
therefore supreme law, it overrides smaller legislation unless it can be proven
that the legislation is a reasonable limit to the Charter.
The second category sets out and protects
fundamental freedoms. The freedoms described in this section and category are
applicable to all people in Canada, not solely those who are Canadian citizens.
These fundamental freedoms are freedom of expression, media, religion, thought,
belief, peaceful assembly, and association. These Section 2 freedoms may be
limited by Section 1 of the Charter
when deemed reasonable.
The third category of the Charter is the democratic rights. This includes Sections 3 through
5. Section 3 outlines that all Canadian citizens have the right to vote in
federal, provincial and municipal governments. Section 4 guarantees that
elections must take place regularly and within the maximum length per term of
the House of Commons, and provincial legislative assemblies, which is five
years. This section also outlines the exception to this law, that in if there
is a war or rebellion, and if two-thirds of the government in question believes
that the government in place should last longer than the given term, it shall
be so. Section 5 just states that Parliament and each other legislature needs
no meet at least once every year so that members of Parliament and Legislature
may raise questions or challenge government policies and actions.
The next category of the Charter is the mobility rights of Canadian citizens which consists
of Section 6. This explains the freedoms Canadians have to go in and out of
Canada, as well as travel within its boundaries. The mobility rights in this
section are subject to the limitations of Section one, therefore the Oakes
test, but cannot be cancelled out by the Notwithstanding Clause in Section 33.
The objective of this particular section, as well as the language rights, is to
promote Canadian unity and allow people to be able to go wherever they chose in
Canada and not be confined to one province or area.
There are eight separate sections of the Charter that divulge on legal rights.
Sections 7, the first of seven sections included in this category, talks specifically
about the right to life, liberty, and security of the person. This applies to
everyone in Canada, citizen or not, but it does not apply to corporations. The
sections in this category also contain legal issues such as laws against unreasonable
search and seizure, arbitrary detention or imprisonment, rights to a lawyer,
rights to habeus corpus, right to know charges, the right to not be subjected
to any cruel or unusual punishment, rights to an interpreter in court and right
not to self-incriminate when a person is acting as a witness. All these rights
are subject to people who are involved in a legal procedure in order to protect
the liberty and dignity of a person.
One of the most well-known sections of the Charter is the equality rights, because
of the big push for equality in the modern generation. Section 15 outlines that
all individuals in Canada, but no corporations, are equal under the law without
discrimination, especially discrimination based on race, national or ethnic
origin, colour, religion, sex, sexual orientation, age, or mental or physical disability.
The push for zero discrimination in the modern day has really put an emphasis
on it.
The seventh category of the Charter of Rights and Freedoms includes
seven sections, and deals with the rules about the official languages of
Canada. This includes what the official languages are, how government services
and documents are to be in both of the official languages, and the availability
of using either in court. Quebec has requested having their own section be put
in, giving them the option of having only French for some of their services,
such as road signs, but it doesn’t seem like this will come about any time
soon, because as with mobility rights, it limits the people who are only English
speaking from getting services in Quebec.
The next category, Section 23, must be read in
conjunction with Section 59 of the Constitution
Act, 1982. Section 23 details the guarantee of French-speaking minorities
outside Quebec access to French primary
and secondary school education as well as English-speaking minorities in Quebec
access to English primary and secondary school education. The inclusion of this
in the Charter was brought about by
Pierre Trudeau, the prime minister at the time who fought for the Charter to be included in the
Constitution. This section is often referred to as the “Canada Clause” because
of how important our languages are to the Canadian population.
The section labeled “Enforcement” in the Charter details the remedies available
to those who have had their Charter
rights denied. Remedies may be dispensed only by a court “of competent jurisdiction”,
usually a federal court, and they may award remedies that are “appropriate and
just”. One remedy available is a “stay of proceedings” in which if the
claimants rights have been denied, the court case stops.
There are a number of problems with the Charter though. In 1999, Adi Abdul
Humaid killed his wife, Aysar Abbas, by stabbing her in the neck nearly twenty
times. He was convicted of first-degree murder and appealed on the basis that
his wife had cheated on him, and, as a devout Muslim, he killed her to protect
the family honor – Section 2 and Section 15. Of course, his appeal was rejected
but his claim raised some concern because of the nature of his defense. Perhaps
the Charter should have some sort of scale system such as gender rights should
be of more importance than religious rights. Also, religious freedoms and
freedoms of expression always cause a bit of controversy. For instance, the
Westboro Baptist Church in the USA pickets dead soldiers funerals with signs
reading "Thank God for dead soldiers”, “Pray for more dead soldiers”, “Thank
God for IEDs”, etc.. But the church can
never be charged or shut down because it is their right to express their
beliefs. Even though this case is mostly in the United States, it would have
similar issues here in Canada because of the religious freedom guarantees in
the Charter.
Works Cited
"Canadian Charter of Rights and Freedoms."
Department of Justice Canada, 29 Mar. 1982. Web. 20 June 2012.
<http://laws-lois.justice.gc.ca/eng/charter/page-1.html>.
Deibel,
Linda. "When Rights Collide with Freedoms." The Toronto Star 28 May
2007. Print.
