Canada and the Charter of Rights and Freedoms

by Maj (ret'd) CORNELIU E. CHISU, CD, PMSC, FEC, CET, P. Eng. Former Member of Parliament Pickering-Scarborough East Last week we had the 40th anniversary of the entry of the Canadian Charter of Rights and Freedoms onto the Canadian national scene. As we look at the evolution of our nation, we should remember that many of the rights and freedoms that are protected under the Charter of Rights and Freedoms (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 (CBR), which the Canadian Parliament enacted in 1960. However, the CBR had a number of shortcomings. Unlike the Charter, it was an ordinary Act of Parliament, applicable only to the federal government, and could be amended by a simple majority of Parliament. Moreover, the courts chose to interpret the CBR only sparingly, and only applied it on rare occasions to find a contrary law inoperative. Additionally, CBR 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. The Charter enshrines an array of rights and freedoms: fundamental freedoms, democratic rights, equality rights, and more. Canadians hold these rights and freedoms against the state. Where the state limits these rights and freedoms without sufficient justification, the state's actions are legally void. The Charter has essentially reshaped Canadian society, primarily on account of how the Charter has been interpreted and applied by courts when state action is tested for compliance with the Charter. However, as with any good and noble intentions, the fact is that the effect of interpretation plays an essential role in practice. If it is not done right by the people who do it, their misguided interpretation can lead to unforeseen and quite negative effects on the evolution of our society. The task of interpreting and enforcing the Charter falls to the courts, with the Supreme Court of Canada (SCC) 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 with regard to federalism, as they had done earlier with case law. However, under section 24 of the Charter, courts also gained new powers to enforce creative remedies and exclude more evidence in trials. That reinforces the necessity of judges to protect the law and avoid political interference. We must not forget that the Charter was intended to be a source of "Canadian values" and "national unity" and that the initial premise of the federal government of the time was to develop a pan-Canadian identity. The intention was to create a society where all people are equal, where all citizens share some fundamental values based on freedom, based on the premise that all Canadians could identify with the values of liberty and equality. We must not forget this and we must invite people in government to abide by these noble principles. The Charter's unifying purpose was particularly important to the mobility and language rights of citizens. I stress mobility because Canadians must be able to travel throughout all of Canada without any kind of restrictions. The Charter has also had a lot to say about the criminal justice system given that the Charter enshrines the right to be free from unreasonable search and seizure, the right to not be arbitrarily arrested or detained, the right to be tried within a reasonable time, and the right to be presumed innocent until proven guilty. The "principles of fundamental justice" mentioned in section 7 have also shaped the contours of constitutional state action in the realm of criminal law. These principles oblige prosecutors to disclose to persons charged with crimes the evidence against them so that they can properly defend themselves. These principles also bar the Canadian government from extraditing citizens for prosecution without assurances from the foreign government that the death penalty will not be pursued. The Court also held that a law denying the vote to citizens who have resided outside of Canada for more than five years unjustifiably violated the right to vote. The Charter has left an indelible mark on Canadian society over the four decades of its existence. Let's keep the positives of the Charter alive in both mind and practice, to continue to improve our society.