Comment 76035

By David Harvey (anonymous) | Posted April 18, 2012 at 10:34:40

Nicely written Ryan.

I had the same poster, though I was in high school at the time. (I also saw Rush's Moving Pictures tour at Maple Leaf Gardens, but that's another story).

It's worth noting that the equality rights section didn't come into force until 3 years later, in 1985. It was thought at the time that it would take governments some time to review and change all their statutes to conform to the new equality provisions.

That decision set the tone for a practice that continues to this day - one that I often find troubling. Courts that decide to strike down laws as unconstitutional frequently suspend their decisions for a period of time to allow the government to adjust the law to bring it into conformity with the Charter. For example, just last week, the Supreme Court of Canada found that the provision of the Criminal Code (s.184.4) which permits the police to wiretap without a warrant in emergency circumstances was unconstitutional, as it violated the protections against unreasonable search and seizure found in Section 8 of the Charter. However, the Court suspended its declaration for a period of one year to allow Parliament to redraft the provision.

While these decisions may appear to be sensible compromises to prevent a legislative vacuum, one must realize what they in fact mean: the Court has determined that the law violates fundamental rights and freedoms guaranteed in the Charter, but it will permit the Government to continue to violate those rights for another year. This conflicts with the commonly held notion that the rights in the Charter are sacrosanct.

Other sections of the Charter, particularly sections 1 and 33, permit limits and restrictions on rights in circumstances deemed appropriate by Courts and Legislatures. The principles underlying the application of these sections are contextual, and can vary in accordance with societal norms and values. Often this is progressive, as seen with the gradual extension of equality rights to gays and lesbians. It can be regressive as well, however. In the post-9/11 world of enhanced security, intrusions on rights that would not have previously been tolerated have become the new normal, both in practice and in law.

We as citizens must never become complacent with respect to the rights and freedoms set out in the Charter. Our rights and freedoms as citizens did not simply come into existence, once and for all time, in 1982. Rather, the Charter provides a framework of principles upon which we agree to govern ourselves. We must uphold and defend that agreement, by respecting the rights of others in our own actions, and by demanding that our governments do so as well. The Charter does not stand alone as our shield - without people willing to forcefully defend its principles, it's just a poster hanging on a wall.

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