Before 1982, the 1960 Canadian bill of rights protected the rights and freedoms of individuals in Canada. The bill of rights guaranteed that individuals enjoyed fundamental rights and privileges like the right to life, security, and liberty. The Canadian Human rights act of 1977 was crucial in safeguarding members of the private sector and the federal public against violations of their rights. Specifically, the right to non-discrimination and equality within their housing, employment, and delivery of services. Different provinces had legislation safeguarding their residents against any form of discrimination at the workplace, home, or when delivering services, goods, or facilities to the general public. Territorial laws safeguarding human rights and freedoms existed way before 1982. However, these laws could be changed or repealed, thereby limiting their ability to protect parties fully. The enactment of the 1982 Canadian Charter of Rights and Freedoms ensured that any new or prevailing government measure would only be applicable under the authority of the Charter.
As the supreme law of Canada, the Charter limits the actions of the Canadian government as it calls for its consideration when formulating any rules or policies. Individuals can present to the court any legislation, the parliament, or a government official for gross violation of fundamental human rights or freedom. Upon hearing the case, the court has the power to declare any law invalid if it found it conflicting with the Charter or offer another just and appropriate resolution. In 1988, the Charter’s Section, which 7 touches on personal liberty, guided the Supreme Court in invalidating the Criminal Code provision against abortion, thereby remodeling women’s reproductive rights.
Section 15 of the Charter entailed the anti-discrimination clause, which guaranteed everyone’s equality before the law. The clause prohibited any form of discrimination, mainly based on color, sex, age, religion, ethnic origin/nationality, or physical or mental disability (Foot, 2018). This clause led to a spat of rulings that transformed the legal perspective for gays and lesbians. A notable case is the Supreme Court’s 1998 Vriend verdict, which banned discrimination based on sexual orientation. The court decision further went ahead and sparked the ratification of same-sex marriage in 2005.
Section 23 of the Canadian Charter of Rights and Freedoms sought to protect the educational rights of the minority language, particularly the French-speaking communities outside Quebec. Section 23 ensures that the majority group did not assimilate the Canadian linguistic minorities by denying them educational rights for an extended period. In Manitoba, there has been the development of minority French language instruction rights since the introduction of the Charter. The Charter led to the formation of the Franco-Manitoban School Division, which provided French-language education to learners in Manitoba. The creation of separate minority school boards fully funded by the provincial treasury ensures the proper discharge of minority language education rights. Such school boards operate throughout Canada, an example being the Francophone Education Authority in British Columbia.
In cases where there has been a report of infringement of minority rights, Section 24 of the Charter retrieves the individuals. Section 24 upholds that following a violation of any resident’s rights, the resident can apply to a court of competent jurisdiction. Upon hearing the case, the court grants retrieve if it finds the remedy appropriate and just in the circumstances. A perfect example of applying section 24 was the 2003 case in Doucet-Boudreau v. Nova Scotia (Minister of Education). In this case, the Supreme Court ruled that any impediment to building French Language schools in Nova Scotia was a significant violation of the claimant’s minority educational right. The court compelled the government to report to a judge the progress of the construction of French Language schools to ensure that they were built and completed in time.
The Charter has limited the government’s ability to infringe on the indigenous rights of Canadian residents. In 1984, Ronald Sparrow, a Musqueam band member, was arrested and charged for fishing with a net longer than his food fishing license. This situation led to an upsurge of protests from the Musqueam community, who saw it as a threat to the collective rights of Aboriginal people in Canada. Upon the defendant’s appeal, the Canadian Supreme Court found Sparrow not guilty. The court based its ruling on section 35 of the Charter, which held that the prevailing Aboriginal and treaty rights were affirmed and recognized in Canada (Dalon, 1985). The ruling meant that the government could not infringe the Musqueam’s Aboriginal right to fish.
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The Charter does not exclusively limit government practices or legislation. Section 33 of the Charter, also called the notwithstanding clause, gives regimes the liberty to exempt their laws from some areas within the Charter (Paradis, 2018). However, these exemptions do not encompass mobility, democratic or language rights. Moreover, no federal government has ever used the notwithstanding clause apart from some provincial governments who have overridden the charter rights. In 2000, the Progressive Conservative government led by Ralph Klein’s in Alberta used the clause to move forward with a bill opposing same-sex marriage. However, in 2004 the Supreme Court rejected the ability of state governments to influence marriage legislation. The ruling made same-sex marriage legal within all provinces in Canada.
The Charter has deprived elected parties like the legislatures and parliament powers and granted it to the courts. The Charter has limited the Canadian government as the practices of the parliament or legislatures can be disbanded by the Supreme Court. The Charter has been able to stimulate dialogue between the courts and the government. Both the legislature and the parliament can now develop laws and regulations that conform to the Charter. The repercussions of the Charter are broad as it guarantees outstanding checks on police work, prosecutors’ work, legislation, and the lives of Canadians.
References
Dalon, R. (1985). An Alberta perspective on aboriginal peoples and the constitution. The Quest for Justice, 83–113. Web.
Foot, R. (2018). Canadian Charter of Rights and Freedoms. The Canadian Encyclopedia. Web.
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Paradis, P. (2018). The significance of the Charter in Canadian legal history. LawNow Magazine. Web.