The True Nature Of The Canadian Charter

The entrenchment of rights in the Canadian Constitution comes after long experience with a system of parliamentary supremacy. The American judicial tradition of treating the written constitution as fundamental law cannot have an instant Canadian counterpart. Thus, it does not follow that the Canadian courts will necessarily claim a role comparable to that of courts in the United States, nor is it clear that the representative bodies in Canada would tolerate such a judicial assertion of power. Opposition by government bodies to the Charter have already occurred in Canada, where the Parti Quebecois government of Quebec invoked the “notwithstanding the Canadian Charter of Rights and Freedoms” clause for the purpose of protecting their language laws from attack under the charter. This report will attempt to note some of the common and distinctive features of the text of the two constitutions as well as to how they differ.

The Charter of Rights and Freedoms was established in 1982 and is the biggest turning point of Canadian history regarding human rights. Before the Charter, rights and freedoms were protected in Canada by a variety of laws, including the 1960 Bill of Rights. Although important, none of these laws were part of the Constitution, therefore lacking the supremacy and permanence of the Charter. This Charter is constitution that protected people from being neglected or mistreated by the government, a problem that had been occurring for many years prior. For example, events such as the Regina Riot, where men fought desperately for their unjust situations but were violently forced to stop. Or, the treatment during the great depression in which the government

Firstly, the appointment of judges shapes Charter interpretation, forcing Canadians to reconsider the people they have given power to and to rethink the Charter’s interpreters’ authority in creating a more “just” society. Unlike the politicians that Canadians decide to have authority over Canadian administration of justice, taxes, foreign affairs, and other issues of national concern; ever since Canada instituted the Charter into the Constitution, many concerns that politicians once burdened themselves with are now turned over to judges whom society cannot elect or un-elect. However, in an article called “Does the Supreme Court of Canada need more checks and balances?” Jeffrey Simpson states “The prime minister has complete discretion to nominate whomever he or

We believe that our judicial system does not support the rights guaranteed in Canadian charter rights and freedom and focus on legal guilt over factual guilt. The Canadian court system sentencing procedure see’ over both sides of the story carefully but court focus on proving suspect guilt rather then innocence. Our judicial systems currently have many flaws and it’s clearly noticeable in some situations. There have been a lot of cases where our judicial system failed to provide justice to the victim or guaranteed rights to society. Our main law that has been compromised in years is the privacy law. Fifteen years ago privacy was not as important as it today, the main reason for that is technology. As science advance it came up with all these new gadgets such as cell, computer and tables and with all technology came the rise social media. We now have Facebook, Twitter, Istagram, and many more online social media sites that people uses. Our law says that all of our private information cannot be disclosed to government unless someone is a threat but these rights have been violated multiple times. The first time it was an issue was in G20 summit, June 2010. Lately is have also been an issue in Canadian spy companies. Also government recently passed the bill c-150, which clearly violates our charter rights.

Many people believe The Charter of Rights and Freedoms, founded by Pierre Elliott Trudeau benefited and became the base for our country’s foundation. It is believed by many, that the Charter created individual rights and freedom. However, while all this may be true, I will argue that the Charter of Rights and Freedoms negatively impacted Canada, and that Canadians are still feeling these effects today. I will also examine the Charter did more harm to Canadians than good. The Charter Rights and Freedoms affected the operation of trials along with judiciary powers, multiculturalism and provincial rights, which undermined Canadas intended democracy and de-centralized government.

The Charter of Rights and Freedoms is part of Canada’s written constitution called the Constitution Act in 1982 it was the second main aspect of the Act and it guaranteed fundamental, democratic, legal, egalitarian, and linguistic rights and freedoms against government intrusion, it imposed formal new limitations on the governments in interaction with its citizens. The charter has made society more equitable for visible minorities through its use of its Fundamental Rights and Freedoms and Section 15 which say that every individual is equal before and under the law and has the right to equal protection and benefit of law without discrimination, but does the Charter really represent Canada’s egalitarian society or are we just saying we care without actually taking action. In this paper it will be shown that the Charter of Rights and Freedoms has not made Canadian society more equitable and will discuss the right side and the left side of the debate, while agreeing with the left sided critiques. The right winged perspective on the Charter argues that the groups are not seeking equality, but, instead, are asking judges to grant them political advantages through favorable Charter decisions ( Smithey, S. I., 2001, p. 2) while the left winged perspective is the Charter not only does not go far enough, but actually retards egalitarian progress in Canada and that the Charter is essentially a classically liberal document designed to constrain state action rather than to require the

Since the birth of the Canadian Charter of Rights and Freedoms there is growing scrutiny of the Supreme Court of Canada’s role in the intertwinement law and politics. Individuals are noting that courts under judicial review have the capacity to shape law to meet the evolving needs of society (Sharpe, 2003:1). This paper will analyze the emerging issues witnessed in the study of Canada’s judiciary system. The first issue being explored is the concept of “Judicial Activism”. This paper defines “Judicial Activism” with accordance to Britannica Encyclopaedia online as being a phenomenon in which judges take a direct policy-making role, and seem more than willing to strike down legislative or executive actions. (Roosevelt, 2015:1).

A question most people have for Canadians is what would you do without the charter? It is relied on so heavily by the Canadian courts and the citizens,

In 1982, the passing of the Canadian Charter of Rights and Freedoms considerably expanded the power and influence of the courts in Canada. With the Charter in position, the courts could make judgment not only on the separate powers between levels of government, but also on the validity and authority of laws executed by Parliament and the provincial

According to D.W Perras, “the courts will now have power to strike down laws made by parliament or the legislatures (…), such ‘striking power’ is a radical departure from democracy as we understand it in Canada” (Perras, 1980). This epitomizes that the Charter of Rights and Freedoms ultimately undermined Canada’s intended democracy. The Journal of democracy describes the term democracy as “an ensemble of institutions aimed at giving legitimacy to the exercise of political power” (Dahrendorf, 2003). Therefore, the gained power by the judiciary limits the power of a democratic society; and “the decision to strike down becomes subjective and therefore unpredictable” (Perras, 1980). When reviewing the power of police offers and the Charter of Rights and Freedoms, one must evaluate section eight and nine (Glen, 1986). According to Luther Glen, section eight and nine of the Charter correspond to “the right to be secure against unreasonable search and seizure and the right not to be arbitrarily detained or imprisoned” (Glen, 1986). Although these rights are relative to individual freedom, Glen states that they have “taken on stats of significant proportions under the charter” (Glen, 1986). Under section eight and nine of the charter, police decisions are questioned; “for the most part, they have merely given police general duties ‘in relation to the preservation of

The Supreme Court of Canada is considered to be the protector of democracy, ensuring that all Canadian citizens, no matter their ethnicity, class, or beliefs, have the rights to have their word on civil and criminal

The Canadian Court systems have been in place for hundreds of years, and have been the places where citizens go to seek justice and safety. Just for a second, imagine that these courts were easy to get to and navigate, and that citizens would feel as if their entire arguments surrounding the law were being used to solve disputes. In any society, there will be some form of law, whether it be simple or complex, and the systems used in the Western World have some fundamental issues and there could certainly be additions for other forms of dispute regulations. The Canadian Legal system has been extremely beneficial for many years since it’s commencement, but Nils Christie’s major criticisms of the Western Legal Systems should be taken into account and fixed to create a more useful system for all Canadian citizens. Christie argues that courts are outside of the public centres so therefore are not accessible to the public, and that once there, the courts are also extremely difficult to navigate and not friendly to those who do not have a profession in law or government. He also argues that people that have disputes have to hire lawyers because without a lawyer, a judge would not regard them highly, and this alternative person uses the legal system to remove a victim from their own conflict. In addition, when a case is brought to courts, the state takes it over and the problem is taken away from the victim, making the crime one that was done against the state. Court systems should

Ever since the passing of the 1867 Constitution Act laying the foundations of Canadian Federalism, provincial and federal governments have debated the interpretation of the Act’s provisions regarding the distribution of powers across the levels of governments. Indeed the federal government was given the upkeep of peace, order, and the good governing of Canada, whereas provinces were left the legislation of all things internal, such as the administration of civil justice, education, and provincial taxation to name but a few. (Beaudoin, 2006)

Since the Constitution Act of 1982, the Supreme Court has gained the power to be the final court of appeal for Canada and use the Canadian Charter of Rights and Freedoms as a way to interpret human rights in a new codified form. This new found capability, to rule whether or not a law was constitutional, puts much importance into a sole branch of government that remains unelected. For this reason, among many, the Supreme Court of Canada much show their transparency within their process or else risk accusations of judicial corruption (Gall, Makin, & Rémillard, n.d.). In other words, the Court must remain accountable to the people as is the rule of law to uphold the understanding of Canada as a Liberal democracy (Malcolmson, Bateman, Myers & Baier, 2016, p. 10).

“The Charter is widely admired, and so are the decisions of the Canadian court,” says Peter Hogg, one of Canada’s leading authority on Canadian constitutional law. “And one reason is that Canada is not the United States (“Ibbitson, 2012”).” Hogg’s words depict the lack of respect our neighbour fails to receive their citizens in regards to their rights and freedoms. Relative to the section of the Charter where it lists out Canadian citizens’ equality rights, Canada ensures that everyone is “treated with the same respect, dignity and consideration”. Furthermore, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (“Department, 2016”).” Canada’s equality rights are important for international reputation because it is proof that Canada cares about their citizens to be treated with equal amounts of respect and give special treatment to those who have been marginalized their entire life. This increases their reputation in the way that more people would come to visit because all the rights in place are friendly to anyone who is coming to visit or immigrate. The government especially takes account of people who have less privileges — they take special care of the highly oppressed groups