The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada and it forms the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and the protection of the civil rights of everyone in Canada from the policies and actions of all areas and levels of government. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was signed into law by Queen Elizabeth II of Canada on April 17, 1982 along with the rest of the Act.
The Charter was preceded by the Canadian Bill of Rights, which was enacted in 1960. However, this Canadian Bill of Rights is only a federal statute, rather than a constitutional document. As a federal statute, it can be amended through the ordinary legislative process of a simple majority of Parliament and has no direct application to provincial laws.
Many of the rights and freedoms that are protected under the Charter of Rights and Freedoms, including the rights to freedom of speech, habeas corpus and the presumption of innocence, have their roots in a set of Canadian laws and legal precedents sometimes known as the Implied Bill of Rights. Many of these same rights were also included in the Canadian Bill of Rights successfully introduced by then prime minister John Diefenbaker of Saskatchewan.
Criticism of the Canadian Bill of Rights (CBR) has mostly centered on its limited effect. The CBR did not contain all of the rights that are now included in The Charter, omitting, for instance, the right to vote and freedom of movement within Canada. Because it is an ordinary statute, the authority of the Bill of Rights is limited to matters set out in Section 91 of the Constitution Act, 1867 as being under the legislative authority of the Parliament of Canada. However, the 1960 Act does enumerate some rights, property rights for example, which are not protected under the Canadian Charter of Rights and Freedoms. For this and other reasons, the 1960 Act is still regularly referenced in court decisions today.
But, the relative ineffectiveness of the Canadian Bill of Rights motivated many to try to improve rights protections in Canada. The movement for human rights and freedoms that emerged after World War II also wanted to entrench the principles enunciated in the Universal Declaration of Human Rights. The British Parliament formally enacted The Charter as a part of the Canada Act 1982 at the request of the Parliament of Canada as the result of the efforts of the government of Prime Minister Pierre Trudeau.
One of the most notable effects of the adoption of The Charter was to greatly expand the scope of judicial review, because The Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Canadian Bill of Rights. The courts, when confronted with violations of The Charter rights, have struck down unconstitutional federal and provincial statutes and regulations or parts of statutes and regulations, as they did when Canadian case law was primarily concerned with resolving issues of federalism. The Charter, however, granted new powers to the courts to enforce remedies that are more creative and to exclude more evidence in trials. These powers are greater than what was typical under the common law and under a system of government that, influenced by Canada’s parent country the United Kingdom, was based upon Parliamentary supremacy. As a result, The Charter has attracted both broad support from a majority of the Canadian electorate and criticisms by opponents of increased judicial power. The Charter only applies to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public-school boards), and sometimes to the common law, but not to private activity.
Note: It is the scope of judicial powers and the utilization of them by incumbents due to their personal bias that has to great degree placed the Canadian democratic process and social norms under such great duress.
Under the Charter, people physically present in Canada have numerous civil and political rights. Most of the rights can be exercised by any legal person (The Charter does not define a corporation as a “legal person”), but a few of the rights belong exclusively to natural persons, or as stated in sections 3 and 6 only to citizens of Canada. The rights are enforceable by the courts through section 24 of the Charter, which allows courts discretion to award remedies to those whose rights have been denied. This section also allows courts to exclude evidence in trials if the evidence was acquired in a way that conflicts with The Charter and might damage the reputation of the justice system. Section 32 confirms that The Charter is binding on the federal government, the territories under its authority, and the provincial governments. But, the rights and freedoms enshrined in the Charter have some Exceptions.
The Exceptions Are Extremely Important for they preclude all the freedoms and form the very basis of The Charter. The very first section, known as limitations clause, allows governments to justify certain infringements of Charter rights. Every case in which a court discovers a violation of The Charter would therefore require a section 1 analysis to determine if the law can still be upheld. Infringements are upheld if the purpose for the government action is to achieve what would be recognized as an urgent or important objective in a free society, and if the infringement can be “demonstrably justified.” Section 1 has thus been used to uphold laws against objectionable conduct such as hate speech (e.g., in R. v. Keegstra) and obscenity (e.g., in R. v. Butler). Section 1 also confirms that the rights listed in The Charter are guaranteed. *The wording all seems a bit contradicting.
In addition, some of these rights are also subjected to the notwithstanding clause of section 33. The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7–15 for up to five years, subject to renewal. The Canadian federal government has never invoked it, and some have speculated that its use would be politically costly. In the past, the notwithstanding clause was invoked routinely by the province of Quebec , which did not support the enactment of the Charter but is subject to it nonetheless.
The provinces of Saskatchewan and Alberta have also invoked the notwithstanding clause, to end a strike and to protect an exclusively heterosexual definition of marriage, respectively. Note that Alberta’s use of the notwithstanding clause is of no force or effect, since the definition of marriage is a federal and not provincial jurisdiction. The territory of Yukon also passed legislation once that invoked the notwithstanding clause, but the legislation was never proclaimed in force.
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It is a righteous action with God that this take place.
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