By Ryan McGreal
Published April 18, 2012
Yesterday was the 30th anniversary of the signing of the Canadian Charter of Rights and Freedoms.
When I was eight years old, I came home from school with a large poster that reproduced the newly-signed Charter. My parents pinned it to my bedroom wall, where it eventually shared space with the cover of Moving Pictures by Rush, Def Leppard looking pouty, a McDonnell-Douglas F-14, Pope John Paul II, and the silhouette of Jason from Friday the 13th.
Canadian Charter of Rights and Freedoms (Image Credit: Toronto Star)
I don't know why it left such an impression on me at such a young age, but the Charter has always been a big inspiration and source of pride. It was Canada growing up as a nation, taking charge of its own destiny, asserting in plain language that certain human rights were fundamental and inviolable.
Canada's legal system inherits the British common law tradition (though contract/tort law in Quebec follows the Justinian tradition). In the common law system, judges rule based on the decisions of previous courts, following and upholding a large body of precedent to ensure consistency and fairness in the application of the law.
In the hierarchy of Canadian law, statutes (laws passed by legislatures) and regulations supersede common law. Traditionally, Canadian judges were extremely reluctant to overturn statutes, even if they were unfair to common law traditions. As such, Canadians' rights were vulnerable to legislative fiat.
The Charter changed that. It sits at the top of the Canadian law hierarchy, superseding statute and common law alike at both the Federal and Provincial/Territorial level. If a tradition or a legislative act is determined to violate Canadians' basic rights - particularly under Section 2 (Fundamental Freedoms) and Section 15 (Equality Rights) - a court can strike down the law as unconstitutional.
Over the past 30 years, the courts have struck down a number of statutes and common laws that violated Charter rights, including restrictions on access to abortion, restrictions on religious expression and dress, denial of collective bargaining rights, prohibitions on same sex marriage, and the right of convicted prisoners to vote.
The Charter enshrines human rights protection and equality for women, minorities and other vulnerable Canadians - including lesbian, gay, bisexual and transgender Canadians, through court decisions that extended the list of prohibited grounds for discrimination in Section 15.
The sections on legal rights have also driven changes to the way police services operate, strengthening protections for personal privacy, freedom from unreasonable or arbitrary detainment and seizure, and due process on arrest.
In the 30 years since the Charter was signed on April 17, 1982, legislatures still have the right to pass laws - but thanks to the Charter, those laws must be so constructed that they do not curtail our rights and freedoms. Where they do, courts now have the power to strike them down.
Of course, nothing is perfect and the Charter has generated its share of controversy, including the requirement that government be accessible in both official languages everywhere in the country, and the so-called "notwithstanding clause" in Section 33, a distinctly Canadian political compromise that grants provincial and territorial governments the right to pass a law that overrides Section 2 or Sections 7-15.
The government of Quebec notoriously applied the notwithstanding clause in 1987 to its French-only language law, though it eventually rewrote the law to conform to the Charter. The government of Alberta passed a law in 2000 banning same-sex marriage and tried to uphold it via the notwithstanding clause, but it was struck down because provincial governments don't have the power to define marriage.
All in all, the Charter has done far more good than harm. One of its finest qualities is that it is succinct and accessible as well as comprehensive. The language is straightforward, and the total length is less than 2,500 words, including headings. If you haven't read it - or haven't read it recently - you really should.