In 1981, a major addition was made to the Canadian constitutional laws: a Charter of Rights and Freedoms.
Canada, circa 1981, was already with some essential human rights statutes, such as the influence on British laws of the Magna Carta in 1215.
Beginning in about 1930, Canada's Supreme Court began teasing constitutional law forward by articulating fundamental legal rights. Some of these cases were very high profile such as Roncarelli v Duplessis but no less important were the 1938 case, Re Alberta Statutes and then, in 1953, Saumur v Quebec City.
Or this, from Justice Rand in Switzman, in 1957
"Liberty ... is little less vital to man's mind and spirit than breathing is to his physical existence."
Then, in 1960, with his heart in the right place, Prime Minister John Diefenbaker's government passed a Bill of Rights.
Although it was limited to the federal government only, the Courts used it and showed it was prepared to use the teeth the Bill had given it. In Drybones, it struck down an offending section of a federal statute.
But what really stoked the fire were developing international treaties on human rights, such as the 1948 Universal Declaration of Human Rights.
The influence from the United States press reporting on the evolution of desegregation was also not lost on the Canadian people.
Right in their own back yard, Canada squared up to human rights issues in struggling to fairly accommodate the French language not only in Quebec, but in other provinces with substantial French-Canadian heritage and population, such as New Brunswick, Ontario and Manitoba.
But then the courts blinked and began to drawback from an assertive, common law but judicially driven approach to evolve human rights in Canada.
Nonplussed, Saskatchewan broke out on its own with a provincial Human Rights Code in 1979 but again, limited to the one provincial jurisdiction.
It took the personal drive of Prime Minister Pierre Trudeau, a constitutional law professor, to convene the provincial premiers and hammer out a Charter.
Although the formal statute would not enter the law until the ceremonial signature by the Queen of England on April 1, 1982, November 5, 1981 marks the day that all provinces and the federal government agreed on the package that included the Charter.
In December of 1981, the federal Parliament approved the document and in March, 1982, the United Kingdom followed suit (the UK Parliamentary aproval was technically necessary as the laws which had formed Canada in 1867 were still on England's books).
On April 17, 1982, the British Queen came to Ottawa and there she signed over the Constitution, including the new Charter (pictured).
In one fell swoop, words that lawyers had been using for ages were defunct.
The British North America Act, taught in Canadian grade schools since 1867, became the Constitution Act, 1867.
Lawyers, being lawyers, then set out a new and distinct law, the Constitution Act, 1982 which is simply the Charter itself since that is all there is to it.
Thus, and unfortunately, the Charter has two formal names: the Constitution Act, 1982, which is nothing more nor less than the Charter; and the Charter itself which is called the Canadian Charter of Rights and Freedoms.
At §52 of the statute, the Charter is given it's very own super-authority and in no uncertain terms:
"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."
The Charter of Rights and Freedoms applies to all laws of Canadian provinces and those of the federal government.
Few would argue with the assertion that the Charter is the most important law in Canada.
The following rights and freedoms are specifically named and protected in the Charter:
- Freedom of conscience and of religion;
- Freedom of thought, belief, opinion and expression including freedom of the press;
- Freedom of peaceful assembly and of association;
- Citizens: the right to enter, remain and leave Canada and to take up residency in any province and to pursue the gaining of a livelihood in any province;
- Right to life, liberty and the security of the person;
- Right to be secure against unreasonable search and seizure;
- The right not be arbitrarily detained;
- The right, on arrest or detention, to be informed of the reasons therefor, to retain a lawyer and to have the validity of the detention determined by a judge at the earliest opportunity;
- Any person charged with an crime has the right to be tried in a reasonable time, to not be compellable as a witness against themselves, and to be presumed innocent until proven guilty;
- The right not to be tried or punished twice for a same crime;
- The right not to be subjected to cruel and unusual punishment;
- Witnesses have the right to seal their testimony so that it cannot be used against themselves except in a subsequent trial for perjury;
- The right to an interpreter if defendant cannot understand the proceedings;
- The right to equal protection of the law without distinction based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability;
- English and French are the official languages of the Governments of Canada and of New Brunswick.
REFERENCES or FURTHER READING
- Beaudoin, G. and Mendes, E., Canadian Charter of Rights and Freedoms (Toronto: LexisNexis-Butterworths, 2005).
- Canadian Bill of Rights, Statutes of Canada 1960, Chapter 44
- Charter of Rights and Freedoms, The Constitution Act, 1982.
- Constitutional Act, 1867
- Duhaime, Lloyd, Chinaman: Racism In Law (1914)
- Reference re Alberta Statutes 1938 SCR 100
- Roncarelli v Duplessis 1959 SCR 121
- R v Drybones 1970 SCR 282
- Saskatchewan Human Rights Code, Statutes of Saskatchewan 1979, Chapter S-24.1
- Saumur v Quebec City 1953 2 SCR 299
- Sharpe, R. and Swinton, K., The Charter of Rights and Freedoms (Toronto: Irwin Law, 1998).
- Switzman v Elbing 1957 SCR 285