Since its passage in 1982, the Canadian Charter of Rights and Freedoms has had a profound impact on Canadian society. Considered by many to be one of the most important documents and legal developments in the country’s history, the Charter is also not without its controversies. While many Canadians see the Charter as a seminal document that has affirmed fundamental Canadian values (Association for Canadian Studies, 2012, p. 1), some critics have charged that the new powers given to courts with the passage of the Charter has created the potential for judicial activism and the undermining of the people’s will (Whyte, 2012). In light of the ongoing debate on the impact of the Charter and how to potentially approach its reform, an investigation …show more content…
Discourse surrounding the issue has been described as a “critical debate” in which parties argue either for or against it providing important benefits (Kelly & Manfredi, 2009, p. 3). While the nature of criticisms of the Charter have changed over the years, the contentious nature of the issue has not (Kelly & Manfredi, 2009, p. 3). Concerns over the Charter Americanizing Canadian society related to fears that it would transform Canadian culture, and result in an over-emphasis of individual rights and individualism (Blomley & Pratt, 2001, p. 154). Other concerns have focused on the Charter’s impact on law making and the degree of power wielded by the courts. Indeed, it has been argued that the Charter has had a dramatic effect on the Canadian political system, influenced the ways judges act, and altered the law-making process for criminal law (Morton, 1987, p. 31). Many of those critical of the Charter see it as promoting a kind of judicial activism in which courts become inappropriately involved in matters of policy, rather than law (Kelly & Manfredi, 2009, p. 3). These critics make the argument that the Canadian Charter is actually undermining democracy in the country by transferring power to the …show more content…
In providing protections for freedoms, the Charter strengthens Canadian democracy by strengthening individual freedom and liberty. There is some significant evidence to support this position. The research shows that the Charter has had an impact on the court’s approach to various issues under review (Epp, 1996, p. 765). At the same time, it is clear that the Charter has only provided a “formal equality” for certain protected groups, who still face significant discrimination in many areas of their lives (Cossman, 2002, p. 223). Still, with the establishment of the Charter, fundamental freedoms and individual liberties have become enshrined in the law (Smith, 1999, p. 74). In making enshrining these protections into the law, the Charter affirms that Canada is a nation of certain values that fundamentally inform the democratic character of its
The Charter of Rights and Freedoms is an important document that allows us to live our lives without arbitrary governmental control, although there may be certain times when rights should be limited. The R. v Oakes case is a perfect example of this situation coming into play. David Edwin Oakes was caught with an unlawful possession of hash oil and was automatically convicted of trafficking, under section 8 of the Narcotic Control Act. By looking at the Charter, it was clear that section 8 of the NCA violated his right to be presumed innocent until proven guilty, guaranteed in section 11.d. With that in mind, the respondent brought in a motion that challenged section 8 of the Narcotic Control Act. Since the Supreme Court and the Crown were confident that the suspect was trafficking narcotics, they created a four criteria ruling, in order to reasonably limit the rights of the respondent. This is permissible under section 1 of the Charter, which states that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms…only to such reasonable limits prescribed by law.”2 The respondent’s case passed the first criterion which stated that “the reasoning for limiting the Charter must be proven important enough to override a constitutionally protected right.” The case did not pass the second criterion which stated that “there must be an appropriate connection between the limitation of rights and the objective of the legislation.”2 Therefore, the appeal was dismissed and the respondent was released. After reviewing the case it was clear that even though the suspect did not have his rights limited against him, limiting rights should be used more often in severe cases.
The Canadian government only protects 18 out of 30 rights in the Universal Declaration and other important rights are ignored. For example, in article 26 of the Universal Declaration, it states that everyone has the right to education. This law is not included in the Charter but I think it is very im...
The inclusion of the Notwithstanding Clause in the Canadian Charter of Rights and Freedoms was an invaluable contribution in the evolution of the liberal democratic state. Not an endpoint, to be sure, but a significant progression in the rights protection dynamic. Subsequent to its passage in 1982 it became the primary rights protecting mechanism, however, its raison d`etre was as a neccessary concession, the pivotal factor allowing the patriation of the constitution. Many legislators present at the constitutional conference in 1981 opposed in varying degrees the entrenchment of a "bill of rights" in the constitution. The premier of Saskatchewan, Allan Blakeney, A preeminent liberal legislator at the time, recognized this potential document as an invitation to judicial review. He feared a conservative judiciary might hinder enlightened policies and sought authority beyond the ambit of an entrenched rights protection act. At the other end of the political spectrum opposition was in the form of an allegiance to parliamentary supremacy as expressed most notably by Sterling Lyon, the conservative premier of Manitoba. Imbedding section 33, commonly referred to as the Notwithstanding Clause, into the constitutional document alleviated these concerns to a degree that permitted their compliance. It is well established that the impetus for the Notwithstanding Clause was of a political nature. To insert this so inspired clause into an intended sanctuary from capricious legislative acts appears tantamount to allowing the fox to guard the chicken coop. Conceivably the same legislative majority that would create the laws abridging rights could exem...
The Canadian Charter of Rights and Freedoms was implemented 1982 has been essential in providing justice for all Canadian citizens. Countless amounts of cases have been decided to create the Charter that is well known in today’s society. Sharon Turpin and Latif Siddiqui were accused of first degree murder and according to the law, the trial was supposed to be tried by a judge and jury. The accused demanded a trial by judge alone because they believed that they were entitled to such a right. The R. v. Turpin case was a significant case that was tough to decide upon because there were many violations of different statutes such as the Canadian Charter of Rights and Freedoms, and the Criminal
A more sudden, but perhaps equally profound event is the adoption in 1982 of the Canadian Charter of Rights and Freedoms. Whereas before the adoption of the Charter Canadian legislatures were supreme, having power without limit within their jurisdictions, they now have debatable supremacy within altered jurisdictions. Moreover, although no powers or rights have been explicitly ‘reserved’ to the people, supporters of the charter nevertheless appear to give Canadians hope that the possibility may exist.
This great country known as Canada, is governed smoothly because of the agreements and rules that have been in place since the beginning of confederation. The Canadian Constitution is one example of these rules. The Canadian Constitution is not just one single documentation, it is a collaboration of documents that make up one enormous document (Dyck 261). The six basic principles of the constitution are: responsible government, federalism, judicial review, the rule of law, constitutional monarchy and democracy; which all helped to shape the Constitution and therefore Canada (Dyck 266).
In conclusion, Canada is held strong with the Charter of Rights and Freedoms. As citizens know their rights and freedoms they can help change the shape of Canada by Charter Challenges. Changes move
The Constitution Act, 1876 and the Constitution Act, 1982 are the two official documents that comprise the Constitution of Canada and are the supreme source of law in the nation. According to Craik & Forcese these documents together rep...
Democracy is more than merely a system of government. It is a culture – one that promises equal rights and opportunity to all members of society. Democracy can also be viewed as balancing the self-interests of one with the common good of the entire nation. In order to ensure our democratic rights are maintained and this lofty balance remains in tact, measures have been taken to protect the system we pride ourselves upon. There are two sections of the Canadian Charter of Rights and Freedoms that were implemented to do just this. Firstly, Section 1, also known as the “reasonable limits clause,” ensures that a citizen cannot legally infringe on another’s democratic rights as given by the Charter. Additionally, Section 33, commonly referred to as the “notwithstanding clause,” gives the government the power to protect our democracy in case a law were to pass that does not violate our Charter rights, but would be undesirable. Professor Kent Roach has written extensively about these sections in his defence of judicial review, and concluded that these sections are conducive to dialogue between the judiciary and the legislature. Furthermore, he established that they encourage democracy. I believe that Professor Roach is correct on both accounts, and in this essay I will outline how sections 1 and 33 do in fact make the Canadian Charter more democratic. After giving a brief summary of judicial review according to Roach, I will delve into the reasonable limits clause and how it is necessary that we place limitations on Charter rights. Following this, I will explain the view Professor Roach and I share on the notwithstanding clause and how it is a vital component of the Charter. To conclude this essay, I will discuss the price at which democr...
Three decades ago, honorable Prime Minister Pierre Trudeau was establishing the renowned Charter of Rights and Freedoms. Since the three decades of being established, the Charter of Rights and Freedoms has protected the individual rights and freedoms of thousands of Canadians. The Charter of Rights and Freedoms has become a part of the national identity and has become a big patriotic symbol for the country. The Charter of Rights and Freedoms is the document the truly separates Canada from all the other powerful nations and is really something that Canadian take a pride in. The Canadian Charter of Rights and Freedoms brings up many questions, but the biggest and most common question is How effectively does Canada’s Charter of Rights and Freedoms protect your individual rights? . To exactly know how effectively it protects your rights you can look at situations where it has protected and has not protected the rights of Canadians. The Charter of Rights and Freedom protects legal rights of Canadian whether they are a teenager or an adult, protects equality rights of Canadian and provides government services to all Canadians no matter what, ensures all laws are passed according to the Charter of Rights and Freedoms and provides equality rights and fundamental freedoms to Canadians for practicing their religion and other rights without interference.
The Canadian Charter of Rights and Freedoms was signed into law by Queen Elizabeth II April 17, 1982. Often referred to as the Charter, it affirms the rights and freedoms of Canadians in the Constitution of Canada. The Charter encompasses fundamental freedoms, democratic rights, mobility rights, legal rights, language rights and equality rights. The primary function of the Charter is to act as a regulatory check between Federal, Provincial and Territorial governments and the Canadian people. Being a successor of the Canadian Bill of Rights that was a federal statute, amendable by Parliament, the Charter is a more detailed and explicit constitutional document that has empowered the judiciary to render regulations and statutes at both the federal and provincial levels of government unconstitutional. Although the rights and freedoms of Canadians are guaranteed, Sections one and seven of the Charter permit the federal and provincial governments to limit the rights and freedoms enjoyed by Canadians. Section one of the Charter designated ‘Rights and freedoms in Canada’ states “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This section is frequently referred to and better known as the reasonable limits clause. The second rights and freedoms limiting section of the Charter, known as the ‘notwithstanding clause’ is Section thirty-three entitled ‘Exception where express declaration’ declares
Systemic discrimination has been a part of Canada’s past. Women, racial and ethnic minorities as well as First Nations people have all faced discrimination in Canada. Policies such as, Charter of Rights and Freedoms, provincial and federal Human Rights Codes, as well has various employment equity programs have been placed in Canada’s constitution to fight and address discrimination issues. Despite these key documents placed for universal rights and freedoms Aboriginal and other minority populations in Canada continue to be discriminated against. Many believe there is no discrimination in Canada, and suggest any lack of success of these groups is a result of personal decisions and not systemic discrimination. While others feel that the legislation and equality policies have yet resulted in an equal society for all minorities. Racism is immersed in Canadian society; this is clearly shown by stories of racial profiling in law enforcement.
The Canadian Charter of Rights and Freedoms was enacted under the Pierre Trudeau government on April 17, 1982. According to Phillip Bryden, “With the entrenchment of the Charter into the Canadian Constitution, Canadians were not only given an explicit definition of their rights, but the courts were empowered to rule on the constitutionality of government legislation” (101). Prior to 1982, Canada’s central constitutional document was the British North America Act of 1867. According to Kallen, “The BNA Act (the Constitution Act, 1867) makes no explicit reference to human rights” (240). The adoption of the Charter of Rights and Freedoms significantly transformed the operation of Canada’s political system. Presently, Canadians define their needs and complaints in human rights terms. Bryden states, “More and more, interest groups and minorities are turning to the courts, rather than the usual political processes, to make their grievances heard” (101). Since it’s inception in 1982 the Charter has become a very debatable issue. A strong support for the Charter remains, but there also has been much criticism toward the Charter. Academic critics of the Charter such as Robert Martin believe that the Charter is doing more harm than good, and is essentially antidemocratic and UN-Canadian. I believe that Parliament’s involvement in implementing the Charter is antidemocratic, although, the Charter itself represents a democratic document. Parliament’s involvement in implementing the Charter is antidemocratic because the power of the executive is enhanced at the expense of Parliament, and the power of the judiciary is enhanced at the expense of elected officials, although, the notwithstanding clause continues to provide Parliament with a check on...
Cameron, Jamie. "Justice in Her Own Right: Bertha Wilson and the Canadian Charter of Rights and Freedoms." The Law Society of Upper Canada. N.p., 2008. Web. 29 Dec. 2013. .
In the year 1970, the Canadian government founded the Law Reform Commission of Canada to ensure the progression of law making and to make recommendations for legal changes . The Law Reform Commission of Canada is constantly importing and suggesting proposals towards the criminal code of Canada. During the year of 1985, t...