   #copyright

Canadian Charter of Rights and Freedoms

2007 Schools Wikipedia Selection. Related subjects: Law

   Canadian Charter
   of Rights and Freedoms [  ]
   Preamble
   Guarantee of Rights and Freedoms
   1
   Fundamental Freedoms
   2
   Democratic Rights
   3, 4, 5
   Mobility Rights
   6
   Legal Rights
   7, 8, 9, 10, 11, 12, 13, 14
   Equality Rights
   15
   Official Languages of Canada
   16, 16.1, 17, 18, 19, 20, 21, 22
   Minority Language Education Rights
   23
   Enforcement
   24
   General
   25, 26, 27, 28, 29, 30, 31
   Application of Charter
   32, 33
   Citation
   34

   The Canadian Charter of Rights and Freedoms (also known as The Charter
   of Rights and Freedoms or simply The Charter) is a bill of rights
   entrenched in the Constitution of Canada. It forms the first part of
   the Constitution Act, 1982. The Charter is intended to protect certain
   political and civil rights of people in Canada from the policies and
   actions of all levels of government. It is designed to unify Canadians
   around a set of principles that embody those rights.

   The Charter was preceded by the Canadian Bill of Rights, which was
   introduced by the government of John Diefenbaker in 1960. However, the
   Bill of Rights was only a federal statute, rather than a constitutional
   document. Therefore, it was limited in scope and was easily amendable.
   Furthermore, as a federal statute, it had no application to provincial
   laws. This motivated some within government 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. Hence, the
   Government of Prime Minister Pierre Trudeau enacted the Charter in
   1982.

   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 Bill of Rights. The courts, when
   confronted with violations of 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. However,
   the Charter 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 mother 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 to the common law, not to
   private activity.

Features

   Under the Charter, persons physically present in Canada have numerous
   civil and political rights. Most of the rights can be exercised by any
   legal person, including a corporation, but a few of the rights belong
   exclusively to natural persons or 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.

   It has been the case, however, the corporations were able to rely on
   sections of the Charter normally reserved for 'natural persons.' In the
   1985 Supreme Court Decision Big M Drug Mart a corporation was able to
   see the Federal Lord's Day Act struck down as an infringement of
   religious freedom. This was possible in that the corporation relied on
   s. 52 of the Constitution Act 1982 rather than (as noted above) s. 24
   which is the usual underpinning of a Charter-challenge. Section 52(1)
   reads "The Constitution of Canada is the supreme law of Canada, and any
   law that is inconsistent with the provisions of the Constitution is, to
   the extent of the inconsistency, of no force or effect." Via s. 52,
   legal personality is NOT required. And thus, corporations have been
   able to rely on sections of the Charter usually reserved for use by
   natural persons only.

   The rights and freedoms enshrined in the Charter include:

          fundamental freedoms ( section 2), namely freedom of conscience,
          freedom of religion, freedom of thought, freedom of belief,
          freedom of expression and freedom of the press, freedom of
          peaceful assembly, and freedom of association.
          democratic rights: generally, the right to participate in
          political activities and the right to a democratic form of
          government:

                Section 3: the right to vote and to be eligible to serve
                as member of a legislature.
                Section 4: a maximum duration of legislatures is set at
                five years.
                Section 5: an annual sitting of legislatures is required
                as a minimum.

          mobility rights: ( section 6): the right to enter and leave
          Canada, and to move to and take up residence in any province, or
          to reside outside Canada.
          legal rights: rights of people in dealing with the justice
          system and law enforcement, namely:

                Section 7: life, liberty, and security of the person.
                Section 8: freedom from unreasonable search and seizure.
                Section 9: freedom from arbitrary detention.
                Section 10: rights on arrest or detention, including the
                right to retain a lawyer and to be informed of that right.
                Section 11: rights in criminal and penal matters such as
                the right to be presumed innocent until proven guilty.
                Section 12: freedom from cruel and unusual punishment.
                Section 13: rights not to incriminate oneself.
                Section 14: rights to an interpreter in a court
                proceeding.

          equality rights: ( section 15): equal treatment before and under
          the law, and equal protection and benefit of the law without
          discrimination.
          language rights: generally, the right to use either the English
          or French language in communications with Canada's federal
          government and certain provincial governments. Specifically, the
          language laws enshrined in the Charter include:

                Section 16: English and French are the official languages
                of Canada and New Brunswick.
                Section 16.1: the English and French-speaking communities
                of New Brunswick have equal rights to educational and
                cultural institutions.
                Section 17: the right to use either official language in
                Parliament or the New Brunswick legislature.
                Section 18: the statutes and proceedings of Parliament and
                the New Brunswick legislature are to be printed in both
                official languages.
                Section 19: both official languages may be used in federal
                and New Brunswick courts.
                Section 20: the right to communicate with and be served by
                the federal and New Brunswick governments in either
                official language.
                Section 21: other constitutional language rights outside
                the Charter regarding English and French are sustained.
                Section 22: existing rights to use languages besides
                English and French are not affected by the fact that only
                English and French have language rights in the Charter.
                (Hence, if there are any rights to use Aboriginal
                languages anywhere they would continue to exist, though
                they would have no direct protection under the Charter.)

          minority language education rights: ( Section 23): rights for
          certain citizens belonging to French or English-speaking
          minority communities to be educated in their own language.

   These rights are generally subject to the limitations clause ( section
   1) and the notwithstanding clause ( section 33). The limitations clause
   in section 1 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 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 was deemed of no force or effect, since the
   definition of marriage is federal not provincial jurisdiction.) The
   territory of Yukon also passed legislation once that invoked the
   notwithstanding clause, but the legislation was never proclaimed in
   force.

   Other sections help clarify how the Charter works in practice. These
   include,

          Section 25, which states that the Charter does not derogate
          existing Aboriginal rights and freedoms. Aboriginal rights,
          including treaty rights, receive more direct constitutional
          protection under section 35 of the Constitution Act, 1982.
          Section 26, which clarifies that other rights and freedoms in
          Canada are not invalidated by the Charter.
          Section 27, which requires the Charter to be interpreted in a
          multicultural context.
          Section 28, which states all Charter rights are guaranteed
          equally to men and women.
          Section 29, which confirms the rights of religious schools are
          preserved.
          Section 30, which clarifies the applicability of the Charter in
          the territories.
          Section 31, which confirms that the Charter does not extend the
          rights of legislatures.

   Finally, section 34 states that the first 34 sections of the
   Constitution Act, 1982 may be collectively referred to as the "Canadian
   Charter of Rights and Freedoms".

History

   John Diefenbaker holds the Canadian Bill of Rights.
   Enlarge
   John Diefenbaker holds the Canadian Bill of Rights.

   Many of the rights and freedoms that are protected under the Charter,
   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 rights were also included in the Canadian Bill of Rights,
   which the Canadian Parliament enacted in 1960. However, the Canadian
   Bill of Rights had a number of shortcomings. Unlike the Charter, it was
   an ordinary Act of Parliament, which could be amended by a simple
   majority of Parliament, and it was applicable only to the federal
   government. The courts also chose to interpret the Bill of Rights
   conservatively, only on rare occasions applying it to find a contrary
   law inoperative. This came as a disappointment to liberals. The Bill of
   Rights 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. Neither the Canadian Bill of Rights nor the
   Implied Bill of Rights established official bilingualism. This was
   first established on the federal level by the Official Languages Act in
   1969. New Brunswick, having its own large French-speaking minority,
   also adopted official bilingualism by statute that year and would
   strengthen this new policy by agreeing to its inclusion in the Charter.

   The centennial of Canadian Confederation in 1967 aroused greater
   interest within the government in constitutional reform. Such reforms
   would include improving safeguards of rights, as well as patriation of
   the Constitution, meaning the British Parliament would no longer have
   to approve constitutional amendments. Subsequently, Attorney General
   Pierre Trudeau appointed law professor Barry Strayer to research a
   potential bill of rights. While writing his report, Strayer consulted
   with a number of notable legal scholars, including Walter Tarnopolsky.
   Strayer's report advocated a number of ideas that were later
   incorporated into the Charter, including protection for language
   rights. Strayer also advocated excluding economic rights. Finally, he
   recommended allowing for limits on rights. Such limits are included in
   the Charter's limitation and notwithstanding clauses. In 1968, Strayer
   was made the Director of the Constitutional Law Division of the Privy
   Council Office and in 1974 he became Assistant Deputy Minister of
   Justice. During those years, Strayer played a role in writing the bill
   that was ultimately adopted.

   Meanwhile, Trudeau, who had become Liberal leader and prime minister in
   1968, still very much wanted a constitutional bill of rights. The
   federal government and the provinces discussed creating one during
   negotiations for patriation, which resulted in the Victoria Charter in
   1971. This never came to be implemented. However, Trudeau continued
   with his efforts to patriate the Constitution, and promised
   constitutional change during the 1980 Quebec referendum. He would
   succeed in 1982 with the passage of the Canada Act 1982. This enacted
   the Constitution Act, 1982.
   With Queen Elizabeth II's approval, the Charter was brought into effect
   in Ottawa on April 17, 1982. Trudeau stands front, second left to the
   Queen; Attorney General Jean Chrétien stands left to Trudeau.
   Enlarge
   With Queen Elizabeth II's approval, the Charter was brought into effect
   in Ottawa on April 17, 1982. Trudeau stands front, second left to the
   Queen; Attorney General Jean Chrétien stands left to Trudeau.

   The inclusion of a charter of rights in the Constitution Act was a
   much-debated issue. Trudeau spoke on television in October 1980 , and
   announced his intention to constitutionalize a bill of rights that
   would include fundamental freedoms, democratic guarantees, freedom of
   movement, legal rights, equality and language rights. He did not want a
   notwithstanding clause. While his proposal gained popular support,
   provincial leaders opposed the potential limits on their powers. The
   federal Progressive Conservative opposition feared liberal bias among
   judges, should courts be called upon to enforce rights. Additionally,
   the British Parliament cited their right to uphold Canada's old form of
   government. At a suggestion of the Conservatives, Trudeau's government
   thus agreed to a committee of Senators and MPs to further examine the
   bill of rights as well as the patriation plan. During this time, 90
   hours were spent on the bill of rights alone, all filmed for
   television, while civil rights experts and interest groups put forward
   their perceptions on the Charter's flaws and omissions and how to
   remedy them. As Canada had a parliamentary system of government, and as
   judges were perceived not to have enforced rights well in the past, it
   was questioned whether the courts should be named as the enforcers of
   the Charter, as Trudeau wanted. Conservatives argued that elected
   politicians should be trusted instead. It was eventually decided that
   the responsibility should go to the courts. At the urging of civil
   libertarians, judges could even now exclude evidence in trials if it
   was acquired in breach of Charter rights in certain circumstances,
   something the Charter was not originally going to provide for. As the
   process continued, more features were added to the Charter, including
   equality rights for people with disabilities, more sex equality
   guarantees and recognition of Canada's multiculturalism. The
   limitations clause was also reworded to focus less on the importance of
   parliamentary government and more on justifiability of limits in free
   societies; the latter logic was more in line with rights developments
   around the world after World War II.

   In its decision in the Patriation Reference (1981), the Supreme Court
   of Canada had ruled there was a tradition that some provincial approval
   should be sought for constitutional reform. As the provinces still had
   doubts about the Charter's merits, Trudeau was forced to accept the
   notwithstanding clause to allow governments to opt out of certain
   obligations. The notwithstanding clause was accepted as part of a deal
   called the Kitchen Accord, negotiated by the federal Attorney General
   Jean Chrétien, Ontario's justice minister Roy McMurtry and
   Saskatchewan's justice minister Roy Romanow. Pressure from provincial
   governments (which in Canada have jurisdiction over property) and from
   the country's left wing, especially the New Democratic Party, also
   prevented Trudeau from including any rights protecting private
   property.

   Nevertheless, Quebec did not support the Charter (or the Canada Act
   1982), with "conflicting interpretations" as to why. The opposition
   could have owed to the Parti Québécois leadership being allegedly
   uncooperative, because it was more committed to gaining sovereignty for
   Quebec. It could have owed to Quebec leaders being excluded from the
   negotiation of the Kitchen Accord, which they saw as being too
   centralist. It could have owed to provincial leaders' objections to the
   Accord's provisions relating to the process of future constitutional
   amendment. They also opposed the inclusion of mobility rights and
   minority language education rights. The Charter is still applicable in
   Quebec because all provinces are bound by the Constitution. However,
   Quebec's opposition to the 1982 patriation package has led to two
   failed attempts to amend the Constitution (the Meech Lake Accord and
   Charlottetown Accord) which were designed primarily to obtain Quebec's
   political approval of the Canadian constitutional order.

   While the Canadian Charter of Rights and Freedoms was adopted in 1982,
   it was not until 1985 that the main provisions regarding equality
   rights (section 15) came into effect. The delay was meant to give the
   federal and provincial governments an opportunity to review
   pre-existing statutes and strike potentially unconstitutional
   inequalities.

   The Charter has been amended since its enactment. Section 25 was
   amended in 1983 to explicitly recognize more rights regarding
   Aboriginal land claims, and section 16.1 was added in 1993. A proposed
   Rights of the Unborn Amendment in 1986-1987, which would have enshrined
   fetal rights, failed in the federal Parliament. Other proposed
   amendments to the Constitution, included in the Charlottetown Accord of
   1992, were never passed. These amendments would have specifically
   required the Charter to be interpreted in a manner respectful of
   Quebec's distinct society, and would have added further statements to
   the Constitution Act, 1867 regarding racial and sexual equality and
   collective rights, and about minority language communities. Though the
   Accord was negotiated among many interest groups, the resulting
   provisions were so vague that Trudeau, then out of office, feared they
   would actually conflict with and undermine the Charter's individual
   rights. He felt judicial review of the rights might be undermined if
   courts had to favour the policies of provincial governments, as
   governments would be given responsibility over linguistic minorities.
   Trudeau thus played a prominent role in leading the popular opposition
   to the Accord.

Interpretation and enforcement

   The task of interpreting and enforcing the Charter falls to the courts,
   with the Supreme Court of Canada being the ultimate authority on the
   matter.

   With the Charter's supremacy confirmed by section 52 of the
   Constitution Act, 1982, the courts continued their practice of striking
   down unconstitutional statutes or parts of statutes as they had with
   earlier case law regarding federalism. However, under section 24 of the
   Charter, courts also gained new powers to enforce creative remedies and
   exclude more evidence in trials. Courts have since made many important
   decisions, including R. v. Morgentaler (1988), which struck down
   Canada's abortion law, and Vriend v. Alberta (1998), in which the
   Supreme Court found the province's exclusion of homosexuals from
   protection against discrimination violated section 15. In the latter
   case, the Court then read the protection into the law.

   Courts may receive Charter questions in a number of ways. Rights
   claimants could be prosecuted under a criminal law that they argue is
   unconstitutional. Others may feel government services and policies are
   not being dispensed in accordance with the Charter, and apply to
   lower-level courts for injunctions against the government (as was the
   case in Doucet-Boudreau v. Nova Scotia (Minister of Education)). A
   government may also raise questions of rights by submitting reference
   questions to higher-level courts; for example, Prime Minister Paul
   Martin's government approached the Supreme Court with Charter questions
   as well as federalism concerns in the case Re Same-Sex Marriage (2004).
   Provinces may also do this with their superior courts. The government
   of Prince Edward Island initiated the Provincial Judges Reference by
   asking its provincial Supreme Court a question on judicial independence
   under section 11.
   The building of the Supreme Court of Canada, the chief authority on the
   interpretation of the Charter
   Enlarge
   The building of the Supreme Court of Canada, the chief authority on the
   interpretation of the Charter

   In several important cases, judges developed various tests and
   precedents for interpreting specific provisions of the Charter. These
   include the Oakes test for section 1, set out in the case R. v. Oakes
   (1986), and the Law test for section 15, developed in Law v. Canada
   (1999). Since Re B.C. Motor Vehicle Act (1985), various approaches to
   defining and expanding the scope of fundamental justice (the Canadian
   name for natural justice or due process) under section 7 have been
   adopted. (For more information, see the articles on each Charter
   section).

   In general, courts have embraced a purposive interpretation of Charter
   rights. This means that since early cases like Hunter v. Southam (1984)
   and R. v. Big M Drug Mart (1985), they have concentrated not on the
   traditional, limited understanding of what each right meant when the
   Charter was adopted in 1982, but rather on changing the scope of rights
   as appropriate to fit their broader purpose. This is tied to the
   generous interpretation of rights, as the purpose of the Charter
   provisions is assumed to be to increase rights and freedoms of people
   in a variety of circumstances, at the expense of the government powers.
   Constitutional scholar Peter Hogg has approved of the generous approach
   in some cases, although for others he argues the purpose of the
   provisions was not to achieve a set of rights as broad as courts have
   imagined. Indeed, this approach has not been without its critics.
   Alberta politician Ted Morton and political scientist Rainer Knopff
   have been very critical of this phenomenon. Although they feel the
   basis for the approach, the living tree doctrine (the classical name
   for generous interpretations of the Canadian Constitution), is sound,
   they argue Charter case law has been more radical. When the living tree
   doctrine is applied right, the authors claim, "The elm remained an elm;
   it grew new branches but did not transform itself into an oak or a
   willow." The doctrine can be used, for example, so a right is upheld
   even when a government threatens to violate it with new technology, as
   long as the essential right remains the same; but the authors claim
   that the courts have used the doctrine to "create new rights." As an
   example, the authors note that the Charter right against
   self-incrimination has been extended to cover scenarios in the justice
   system that had previously been unregulated by self-incrimination
   rights in other Canadian laws.

   Another general approach to interpreting Charter rights is to consider
   legal precedent regarding the United States Bill of Rights, which
   influenced the text of the Charter and has generated a great deal of
   thoughts on the extent of rights in a common law, democratic system and
   how bills of rights should be enforced by courts. However, American
   precedent is not considered infallible. The Canadian Supreme Court has
   referred to the Canadian and American bills as being "born to different
   countries in different ages and in different circumstances."

   Legal organizations have also been formed and frequently intervene in
   cases to assist courts in the process of interpreting the Charter.
   Notable examples would be the Canadian Civil Liberties Association, the
   Canadian Labour Congress and the Women's Legal Education and Action
   Fund (LEAF).

   A further approach to the Charter, taken by the courts, is the dialogue
   principle, which involves greater participation by elected governments.
   This approach involves governments drafting legislation in response to
   court rulings and courts acknowledging the effort if the new
   legislation is challenged.

Comparisons with other human rights instruments

   The United States Bill of Rights influenced the text of the Charter,
   but its rights provisions are interpreted more conservatively. Canadian
   and American cases nevertheless sometimes have similar outcomes because
   the broader Charter rights are limited by section 1 of the Charter.
   Enlarge
   The United States Bill of Rights influenced the text of the Charter,
   but its rights provisions are interpreted more conservatively. Canadian
   and American cases nevertheless sometimes have similar outcomes because
   the broader Charter rights are limited by section 1 of the Charter.

   Some Canadian Members of Parliament saw the movement to entrench a
   charter as contrary to the British model of Parliamentary supremacy.
   Others would say that the European Convention on Human Rights has now
   limited British parliamentary power to a greater degree than the
   Canadian Charter limited the power of the Canadian Parliament and
   provincial legislatures. Hogg has speculated that the British adopted
   the European Convention partly because they were inspired by the
   similar Canadian Charter.

   The Canadian Charter bears a number of similarities to the European
   Convention, specifically in relation to the limitations clauses
   contained in the European document. The underlying reason for these
   similarities is that the Canadian Charter and the European Convention
   are both inspired by the Universal Declaration of Human Rights. Because
   of this similarity with European human rights law, the Supreme Court of
   Canada turns not only to the Constitution of the United States case law
   in interpreting the Charter, but also to European Court of Human Rights
   cases.

   The core distinction between the United States Bill of Rights and
   Canadian Charter is the existence of the limitations and
   notwithstanding clauses. Canadian courts have consequently interpeted
   each right more expansively. However, due to the limitations clause,
   where a violation of a right exists, the law will not necessarily grant
   protection of that right. In contrast, rights under the US Bill of
   Rights are absolute and so a violation will not be found until there
   has been sufficient encroachment on those rights. The sum effect is
   that both constitutions provide comparable protection of many rights.
   Fundamental justice (in section 7 of the Canadian Charter) is therefore
   interpreted to include more legal protections than due process, which
   is its US equivalent. Freedom of expression in section 2 also has a
   more wide-ranging scope than the First Amendment to the United States
   Constitution's freedom of speech. In RWDSU v. Dolphin Delivery Ltd.
   (1986), the Canadian Supreme Court considered picketing of the kind the
   US First Amendment did not permit, as it was disruptive conduct (though
   there was some speech involved that the First Amendment might otherwise
   protect). The Supreme Court, however, ruled the picketing, including
   the disruptive conduct, were fully protected under section 2 of the
   Charter. The Court then relied on section 1 to find the injunction
   against the picketing was just. The limitations clause has also allowed
   governments to enact laws that would be considered unconstitutional in
   the US. The Supreme Court of Canada has upheld some of Quebec's limits
   on the use of English on signs and has upheld publication bans that
   prohibit media from mentioning the names of juvenile criminals.

   Section 28 of the Charter performs a function similar to that of the
   Equal Rights Amendment in the US. However, the Equal Rights Amendment
   is currently unratified. This may be because the American Amendment
   received an unfavourable reaction from the religious right, and there
   was no comparable opposition to the Charter's section 28. Still,
   Canadian feminists had to stage large protests to demonstrate support
   for the inclusion of the section.

   The International Covenant on Civil and Political Rights has several
   parallels with the Canadian Charter, but in some cases the Covenant
   goes further with regard to rights in its text. For example, a right to
   legal aid has been read into section 10 of the Charter (the right to
   counsel), but the Covenant explicitly guarantees the accused need not
   pay "if he does not have sufficient means."

   The Canadian Charter has little to say, explicitly at least, about
   economic and social rights. On this point, it stands in marked contrast
   with the Quebec Charter of Human Rights and Freedoms and with the
   International Covenant on Economic, Social and Cultural Rights. There
   are some who feel economic rights ought to be read into section 7
   rights to security of the person and section 15 equality rights to make
   the Charter similar to the Covenant. The rationale is that economic
   rights can relate to a decent standard of living and can help the civil
   rights flourish in a livable environment. Canadian courts, however,
   have been hesitant in this area, stating that economic rights are
   political questions and adding that as positive rights, economic rights
   are of questionable legitimacy.

   The Charter itself influenced the Bill of Rights in the Constitution of
   South Africa.

The Charter and national values

   The "March of Hearts" rally for same-sex marriage equality under the
   Charter in 2004.
   Enlarge
   The "March of Hearts" rally for same-sex marriage equality under the
   Charter in 2004.

   The Charter was intended to be a source for national values and
   national unity. As Professor Alan Cairns noted, "The initial federal
   government premise was on developing a pan-Canadian identity." Trudeau
   himself later wrote in his Memoirs that "Canada itself" could now be
   defined as a "society where all people are equal and where they share
   some fundamental values based upon freedom," and that all Canadians
   could identify with the values of liberty and equality.

   The Charter's unifying purpose was particularly important to the
   mobility and language rights. According to author Rand Dyck, some
   scholars believe section 23, with its minority language education
   rights, "was the only part of the Charter with which Pierre Trudeau was
   truly concerned." Through the mobility and language rights, French
   Canadians, who have been at the centre of unity debates, are able to
   travel throughout all Canada and receive government and educational
   services in their own language. Hence, they are not confined to Quebec
   (the only province where they form the majority and where most of their
   population is based), which would polarize the country along regional
   lines. The Charter was also supposed to standardize previously diverse
   laws throughout the country and gear them towards a single principle of
   liberty.

   Former premier of Ontario Bob Rae has stated that the Charter
   "functions as a symbol for all Canadians" in practice because it
   represents the core value of freedom. Academic Peter Russell has been
   more skeptical of the Charter's value in this field. Cairns, who feels
   the Charter is the most important constitutional document to many
   Canadians, and that the Charter was meant to shape the Canadian
   identity, has also expressed concern that groups within society see
   certain provisions as belonging to them alone rather than to all
   Canadians. It has also been noted that issues like abortion and
   pornography, raised by the Charter, tend to be controversial. Still,
   opinion polls in 2002 showed Canadians felt the Charter significantly
   represented Canada, although many were unaware of the document's actual
   contents.

   The only values mentioned by the Charter's preamble are recognition for
   the supremacy of God and the rule of law, but these have been
   controversial and of little legal consequence. In 1999, MP Svend
   Robinson proposed before the Canadian House of Commons that the Charter
   be amended to remove the mention of God, as he felt it did not reflect
   Canada's diversity.

   Section 27 also recognizes multiculturalism, which the Department of
   Canadian Heritage argues is prized among Canadians.

Criticism

   While the Charter has enjoyed a great deal of popularity, with 82% of
   Canadians describing it as a "good thing" in opinion polls in 1987 and
   1999, the document has also been subject to published criticisms from
   both sides of the political spectrum. One left-wing critic is Professor
   Michael Mandel, who wrote that in comparison to politicians, judges do
   not have to be as sensitive to the will of the electorate, nor do they
   have to make sure their decisions are easily understandable to the
   average Canadian citizen. This, in Mandel's view, limits democracy.
   Mandel has also asserted that the Charter makes Canada more like the
   United States, especially by serving corporate rights and individual
   rights rather than group rights and social rights. He has argued that
   there are several rights that should be included in the Charter, such
   as a right to health care and a basic right to free education. Hence,
   the perceived Americanization of Canadian politics is seen as coming at
   the expense of values more important for Canadians. The union movement
   has been disappointed in the reluctance of the courts to use the
   Charter to support various forms of union activity, such as the "right
   to strike".

   Right-wing critics Morton and Knopff have raised several concerns about
   the Charter, notably by alleging that the federal government has used
   it to limit provincial powers by allying with various rights claimants
   and interest groups. In their book The Charter Revolution & the Court
   Party, Morton and Knopff express their suspicions of this alliance in
   detail, accusing the Trudeau and Chrétien governments of funding
   litigious groups. For example, these governments used the Court
   Challenges Program to support minority language educational rights
   claims. Morton and Knopff also claim that crown counsel have
   intentionally lost cases in which the government was taken to court for
   allegedly violating rights, particularly gay rights and women's rights.

   Political scientist Rand Dyck, in observing these criticisms, notes
   that while judges have had their scope of review widened, they have
   still upheld most laws challenged on Charter grounds. With regard to
   litigious interest groups, Dyck points out that "the record is not as
   clear as Morton and Knopff imply. All such groups have experienced wins
   and losses."

   The political philosopher Charles Blattberg has criticized the Charter
   for contributing to the fragmentation of the country, at both the
   individual and group levels. In encouraging discourse based upon
   rights, the Charter is said to inject an adversarial spirit into
   Canadian politics, making it difficult to realize the common good.
   Blattberg also claims that the Charter undercuts the Canadian political
   community since it is ultimately a cosmopolitan document. Finally, he
   argues that people would be more motivated to uphold individual
   liberties if they were expressed with terms that are much "thicker"
   (less abstract) than rights.

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