In Ottawa on April 17, 1982, Queen Elizabeth II signed the Canada Act, 1982 into law, thereby ending the British Parliament’s power to amend the Canadian Constitution. This proclamation meant that Canada had become master of its own destiny on constitutional matters. Canada had, in a word, “patriated” its Constitution. One key feature of the Act was that it entrenched the Charter of Rights and Freedoms in the Constitution.
With the Charter, the basic principles that Canadians’ rights and freedoms were built on (mainly, freedom and democracy) acquired constitutional status. Because it is entrenched in the Constitution, the Charter stands above all other laws.
A Long Process
In a collection of essays published in 1996 as The Canadian Charter of Rights and Freedoms, Brian Dickson, a former chief justice of the Supreme Court, points out that entrenching the Charter in the Constitution was the result of a long process. The saga began in 1867 when the British North America Act was passed. The process gathered speed after the Second World War once the Universal Declaration of Human Rights was adopted in 1948 and various international treaties were signed.
In Canada, John Diefenbaker’s government enacted the Canadian Bill of Rights in 1960, and it is still in force today. In 1970, the Supreme Court, in a famous ruling (Drybones), used the Bill of Rights to strike down certain provisions of the Indian Act deemed discriminatory. The ruling was remarkable in that, for one of the first times, the Court repealed legal provisions on the basis of another law, a practice that has become common since the Charter was passed. Before the Drybones decision, the courts struck down laws only when the sharing of jurisdictions between Ottawa and the provinces hadn’t been respected.
Furthermore, when the Canadian Charter came into force, a total of eight provinces had already passed laws protecting political rights and fundamental freedoms. The first was Saskatchewan back in 1943. Later, the others followed suit: Ontario in 1962, Nova Scotia in 1963, Alberta in 1966, New Brunswick in 1967, Prince Edward Island in 1968, Newfoundland in 1969, British Columbia in 1969, Manitoba in 1970 and Quebec in 1975.
Impact of the Charter
Section 52 of the Constitution Act states that any law that is inconsistent with the Charter is of no force or effect. Section 24 holds that anyone whose rights under the Charter have been denied may apply to the courts to obtain remedy. In the past 20 years, these provisions have led to an enormous number of court appeals in the enforcement of the Charter. In his essay, Brian Dickson reported that from 1984 to 1995, the Supreme Court alone handed down some 225 rulings in cases involving the Charter. Today, this number tops 425.
In the book The Charter: Ten Years After published in 1992, another Supreme Court judge, Bertha Wilson, writes that once the Charter was adopted, judges were obliged to examine their role under this legislation. They concluded they had a duty to ensure that federal and provincial governments legislated in keeping with the Constitution and with the Charter enshrined in it. Logically, judges could now rule that a certain provision was unconstitutional under the Charter, something they ended up doing time and again.
The adoption of the Charter drew and still draws considerable criticism. Some say that the Charter overly judicializes relations between Canadians, gives judges too much power or even marks the triumph of individual rights over collective rights.
A witness to and sometimes a key player in the long constitutional debate, Senator Gérald-A. Beaudoin says that the Canadian Charter of Rights and Freedoms has had a major, profound and irreversible impact on Canadians. The impact is major because of the constitutionalization of rights and freedoms, which are now protected from legislative changes just as ordinary laws are. It is profound because a great many rights and freedoms have been constitutionalized (fundamental freedoms, right to vote, legal guarantees, equality rights, language rights). And it is irreversible because Canadians now reflect more on their rights and freedoms than ever before and assert and defend them vigorously, as shown by the letters sent to the Senate by Canadians worried about the scope of certain bills. “No government would ever dare repeal the Charter and turn back the clock,” Senator Beaudoin says.
When the Charter came into force, it also changed considerably how legal practitioners worked. They had to start looking beyond legislation at the possible impact that actions had on basic human rights. Francis Gervais, a past president of the Quebec Bar, says that lawyers must now reflect further on the implications of their acts because certain legal recourse, however valid, could be rejected for failure to comply with fundamental rights. “This has changed the job of lawyers and made it a little harder,” Mr. Gervais says. “We now have to examine issues differently. It’s a new way of thinking, but it has become second nature to us.”
Brian Dickson explains, however, that the effect of the Charter wasn’t unlimited and its scope can be confined. He cites section 1 of the Charter, which allows limits placed on the exercise of certain rights and freedoms, provided that these limits are “reasonable” and “can be demonstrably justified in a free and democratic society.” He also cites section 33, which enables a government to derogate from implementing the provisions of the Charter by invoking the so-called notwithstanding clause.