More than 30 years ago today, one of the most significant developments in the protection of human rights in Canada was signed and entrenched in the Canadian Constitution under the leadership of then Prime Minister Pierre Trudeau. Coming into force on April 17. 1982. the Charter of Rights and Freedoms is the most visible and recognized part of the Canadian Constitution and is intended to protect certain political and civil rights of people in Canada from the policies and actions of all levels of government.
Since its enactment in 1982, the Charter has had a powerful influence on Canadian federalism, while also communicating true independence from the former British colony. The introduction of the Charter of Rights has undoubtedly assisted Canadians in their ability to challenge government actions and legislation that infringe upon their rights. As a result, many great positive and at times controversial changes have and has led to many positive changes regarding equality of men and women while strengthening rights of Aboriginals and oppressed minority groups alike.
Alternatively, many critics argue the limitations of the Charter and whether the enactment truly signalled the emergence of a more democratic and acceptance in human equality in Canada. Pierre Trudeau was arguably one of the most controversial Prime Ministers of Canada, known as a charismatic leader with an enthusiasm for political change, his contributions marked an important era of generating a strong sense of Canadian independence. Trudeau had many great accomplishments while in office including the adoption of the Official Languages Act in 1969, which established an equal status of French and English in the government of Canada.
Shortly after in 1971, the policy of official multiculturalism was implemented to preserve and enhance distinct cultures within Canada. Multiculturalism as a result became more than just a government policy, but formed a fundamental component of Canada’s national identify. In 1982, Trudeau’s greatest achievement came with the addition of the Charter of Rights and Freedoms to the Canadian Constitution which permanently changed the nature of Canada’s government and created both supporters and critics of the Charter.
Prior to the enactment of the Charter, the civil and political rights of Canadians only existed as federal statute in the Canadian Bill of Rights and not a fundamental law of the land. The Charter affirms and guarantees certain rights and freedoms that are considered essential in a free and democratic society including voting, speech, religion, assembly, and equality. When examining the context of democracy in the Canadian Constitution there is no clear description provided as to what is truly meant by a “democratic society” and thus leaves much up to interpretation.
If we were to define democracy in terms of expanding political participation to all equal groups of Canadians, entrenchment of legal rights and limits imposed on the power of government, then arguably the introduction of the Charter signified an evolutionary change toward a more democratic and impartial Canada. The entrenchment of the Charter of Rights has enhanced democracy by allowing Canadians to challenge government actions that infringe upon their rights.
Opportunities for legal action by equality-seeking groups have grown since the Charter was introduced and generated an increase in human rights cases reaching the courts. The success rate also experienced an increase of 52% from 15% preceding the Charter as opposed to solely under the Canadian Bill of Rights, but declined gradually in the subsequent years. Possibilities were created for individuals to challenge government actions that they felt infringed upon their rights and interests as demonstrated by supporters of Aboriginal rights in 1982 as a historical turning point was achieved with the addition of the Charter.
Section 35 of the Charter provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada, which increased the prospect of Aboriginal peoples claim to entailed rights previously negated. The charter’s recognition of Aboriginal Peoples sent a very important message as it imposed on governments a duty to consult aboriginal peoples when resource development and other government changes affect them unjustifiably.
While it does not give native groups an absolute veto on these changes, it does ensure they will be able to participate in the process. In other examples the Charter has led to many momentous milestones for marginalized groups including women, ethic minorities, and gay and lesbians who were previous The right to vote only officially became a fundamental privilege with the adoption of the Charter as described under section 3 of the Constitution, but many Canadians assumed that their right to vote was assured well before 1982.
As a democratic society is defined as all eligible citizens possessing the right to participate, either directly or indirectly, in making the decisions that affect them, the Charter therefore did not signal the emergence of a more democratic Canada but rather legally defined it.
Significant advances in election law and administration had occurred before the advent of the Charter, denial of the franchise on the basis of gender, religion, race, ethnicity and income had been removed from the law and administrative steps had been taken to improve access to the vote for people with disabilities, people away from home on election day and members of the public service and the military serving abroad. The Charter of Rights and Freedoms thus served as a final note in the evolution of the franchise in Canada.
While it is every Canadians basic right to vote, a large majority fail to exercise this democratic right or center their decision solely on external issues, this trend has been largely linked to the shift in the role of mass media. This change from a setting of public debate to commercialization of advertisements has hindered the democratic process because at the key components of a well-functioning democracy The combination of major media and broadcaster’s freedom and the power of the majority of Canadian MPs to create electoral laws severely hinder Canadian democracy, by reducing electoral choice and electoral opportunity.
Democracy is an extension of the people. If the people are disconnected from democracy, then democracy will cease to represent the people. Therefore, it is imperative that Canadians fight for their democracy. http://www. thecanadiancharger. com/page. php? id=5&a=958 In many ways critics argue the Charter is a profoundly antidemocratic document as it has enhanced the role of the courts to permit judges the power to strike down laws that infringed upon the rights and freedoms given constitutional status.
The main issue that arises from an inflated judiciary role is that the Charter is anything but self-executing, meaning it is open to much interpretation. It is full of vaguely worded rights and the social science evidence that courts have at their disposal in adjudicating Charter claims is anything but determinative. As a result, judicial decisions interpreting and applying the Charter are bound to be controversial as reasonable people can and do disagree about the interpretation and application of the Charter rights, so do reasonable judges, as evident by the number of closely divided decisions in the Supreme Court.
As the Charter has elevated the role of the courts by allowing judges to make sweeping social and legal changes through their interpretation of the Charter’s meaning, critics say this has diminished the supremacy of elected bodies such as Parliament and the legislatures, by giving courts the power to dismiss their decisions. Alternatively, others argue the Charter has initiated a “dialogue” between Parliament and the courts, with judges triking down laws where necessary which allows Parliament and legislatures to rewrite those laws in ways that are compliant with the Charter. http://www. thecanadianencyclopedia. ca/en/ article/canadian-charter-of-rights-and-freedoms/While some have criticized this development as resulting in judicial activism, in reality the Charter contains provisions that create a balance with legislative objectives and allow government to circumvent its provisions as illustrated in sections 1 and 33 of the Charter.
For example, even where the court has found that the government has violated a Canadian’s Charter right, the government has the opportunity under section 1 to defend its law or action as being reasonable and demonstrably justified in a free and democratic society. If the court finds the viola saved by Charter from section 1, the law is upheld as reflecting an appropriate compromise between an individual’s rights and societal values.
Alternatively, legislatures can use the notwithstanding clause found in section 33 to indicate that the law operates notwithstanding the Charter. While some people were concerned that this clause effectively gives too much power to Parliament and the provincial legislatures to override Charter rights, in practice, the political cost of using the notwithstanding clause has kept the various governments in check and thus, the Charter provides opportunities for the legislative branch of Canada to offset the judicial branch and vice-versa. ttp://www. lawnow. org/the-canadian-charter-ofrights-and-freedoms-an-integral-part-of-our-constitution/
The courts’ role in protecting Charter rights is profoundly important, but it is incumbent on the courts to act modestly in performing this role, promoting democratic resolution of our problems rather than imposing constitutional solutions. Thirty years into the Charter, the relationship between the legislature and the courts remains the most pressing problem in Charter litigation.
The advent of the Charter has ensured that individual rights are entrenched in Canada. It may have expanded the role of judges, but it has also increased the dialogue between the legislative and judicial branches of government. It has certainly also raised public awareness of the courts, rights and the law. Empowers the people, which is what democracy is based upon
