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 The ruling was remarkable in that, for one of the first times, the Court repealed legal provisions on the basis of another law, a practice that has become common since the Charter was passed.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.
Supreme Court judge Bertha Wilson
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.
of Rights and Freedoms
|Part of theConstitution Act, 1982.|
|Guarantee of Rights and Freedoms|
|3, 4, 5|
|7, 8, 9, 10, 11, 12, 13, 14|
|Official Languages of Canada|
|16, 16.1, 17, 18, 19, 20, 21, 22|
|Minority Language Education Rights|
|25, 26, 27, 28, 29, 30, 31|
|Application of Charter|
The preamble to the Canadian Charter of Rights and Freedoms is the introductory sentence to the Constitution of Canada's Charter of Rights and Constitution Act, 1982. In full, it reads,
Writing in 1982, when the Charter came into force, constitutional scholar Peter Hogg noted that these words, being a preamble, could not really be applied by the courts but in theory could help to determine how other sections of the Charter should be read and applied. In this particular case, however, Hogg expressed doubt as to how much help this preamble could be, noting the term "rule of law" is "notoriously vague" and that the mention of the "supremacy of God" is contrary to section 2 of the Charter, which protects freedom of conscience, which Hogg felt would include a right to atheism. In R v Morgentaler (1988), Justice Bertha Wilson defined freedom of conscience as protecting "conscientious beliefs which are not religiously motivated", and balanced the preamble out with the statement that "the values entrenched in the Charter are those which characterize a free and democratic society".
In considering the legal implications of the preamble in the 1999 case R v Sharpe, the British Columbia Court of Appeal referred to it as a "dead letter" which the B.C. justices had "no authority to breathe life" into.
The Supreme Court did consider the preamble's mention of the rule of law in Reference Re Manitoba Language Rights (1985), noting that striking down most of Manitoba's laws as unconstitutional (because they were not enacted in both languages as required by the Manitoba Act) might be a threat to the rule of law. This would render Manitoba nearly lawless, and the principle of the rule of law was defined as meaning no one is above the law and that laws must exist, as they uphold society's values. The Court therefore confirmed the Charter's preamble's importance by stating, "The constitutional status of the rule of law is beyond question." Consequently, some time was given before the unconstitutional laws would expire.
In Re BC Motor Vehicle Act (1985), the Supreme Court also linked the rule of law to the principles of fundamental justice, as illustrated by sections 8 to 14 of the Charter. The Court noted the importance of these rights to the justice system, stating that sections 8 to 14 "have been recognized as essential elements of a system for the administration of justice which is founded upon a belief in 'the dignity and worth of the human person' (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III) and on "the rule of law" (preamble to the Canadian Charter of Rights and Freedoms)."
TheologianDouglas Farrow has written that while some courts have rejected that the preamble's mention of God can have any force, the preamble indicates that, "Canada cannot be regarded as a strictly secular country, in the popular sense of the term." Farrow writes that either Canada "is, or is not, committed to the notion that divine worship is linked- one way or another- to 'a love of the laws,' and a love of the laws to divine worship". The word "Whereas", moreover, indicates all sections of the Charter should be read in light of the principle recognizing the supremacy of God. This includes the "rule of law", which comes after the "supremacy of God" in the preamble, and Farrow writes that the rule of law "is hard to account for, to interpret, or to sustain without reference" to the supremacy of God, as the rule of law developed from the religious backgrounds of Canada.
Farrow also questioned whether the preamble refers to a specific God (the Christian God or Jewish God) or to a more abstract concept that promotes civic virtue (i.e., civil religion).
In R v Big M Drug Mart Ltd, a dissenting judge on the Alberta Court of Appeal, Justice Belzil, wrote that the preamble to the Charter indicated Canada had a Christian heritage and thus courts should not use the section 2 right to freedom of religion to eliminate traditions of this heritage.
After one version of the Charter drawn in June 1980 that lasted until September, which said in its preamble that Canadians "shall always be, with the help of God, a free and self-governing people", the Charter was not going to have a preamble. The current preamble only first appeared in the April 1981 draft, which came relatively late in the process. It was included despite the fact there was no call for the Charter to have a preamble by the Special Joint Committee which was reviewing the Constitution, and that according to George Egerton, the prime minister of Canada at the time, Pierre Trudeau, called it "strange" that some of his colleagues wanted God referenced in the Charter. (Trudeau told his MPs, "I don't think God gives a damn whether he's in the constitution or not.") However, there were various religious and Conservative criticisms of the Charter during its drafting, with fears that denominational schools and Canada's abortion law were threatened. Also at this time, religious groups in Canada such as "100 Huntley Street" and the Evangelical Fellowship of Canada were growing and wanted God acknowledged in the Constitution. Despite the Liberal Party of Canada's protests that a better preamble could be written after patriation was achieved and that therefore there was no need for the preamble being proposed at the time by the Conservatives, religious groups increased their activism. Trudeau's justice minister, Jean Chrétien, said it was the top issue in all of the letters the government was sent during patriation.
Farrow identified the Charter preamble as being the successor to, although shorter than, the preamble in the 1960 Canadian Bill of Rights, which reads:
|“||The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions; |
Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;
And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:
There was also precedent for religious references in Canadian politics in the national motto ("A Mari usque ad Mare"), which is derived from Psalm 72. The reference to the supremacy of God was new to the Canadian Constitution itself, however. The British North America Acts made no mention of this, even though as author George Egerton remarked, "It is doubtful if the Canadian political elites of 1982 were as firm as the patriarchs of 1867 in their devotion to the supremacy of God"; indeed, many were aiming for more separation of church and state.
The preamble has been politically controversial. In 1999, New Democratic Party MP Svend Robinson proposed before the Canadian House of Commons that the mention of God be struck from the preamble, citing concerns about Canada's diversity and those Canadians who would not share that principle. He was supported by a thousand constituents who had signed a petition, but the proposal was controversial and the party leader moved Robinson to the backbenches.
The preamble has proved valuable to some groups and political parties. The Christian Heritage Party of Canada, for example, quoted the preamble on the main page of their website, and the party called itself "Canada's only pro-Life, pro-family federal political party, and the only federal party that endorses the principles of the Preamble to the Charter of Rights and Freedoms". The words "principles that recognize the supremacy of God and the rule of law" also appear in the party's official policies regarding what they feel all laws should be based upon, and the party states, "'Human rights' as expressed in the ;Canadian Charter of Rights and Freedoms can only, therefore, be legitimately interpreted in light of, or in conjunction with, the higher Moral Law of God."
- ^Hogg, Peter W. Canada Act 1982 Annotated. Toronto, Canada: The Carswell Company Limited, 1982.
- ^Farrow, Douglas. "Of Secularity and Civil Religion." In Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy. Ed. Douglas Farrow. McGill-Queen's University Press, 2004.
- ^Reference re Manitoba Language Rights pages 747-750.
- ^Re B.C. Motor Vehicle Act,  2 S.C.R. 486 at para. 30.
- ^ abFarrow
- ^Egerton, George. "Trudeau, God, and the Canadian Constitution: Religion, Human Rights, and Government Authority in the Making of the 1982 Constitution." In Rethinking Church, State, and Modernity: Canada between Europe and America. Eds. Daniel Lyon and Marguerite Van Die. University of Toronto Press.
- ^ abEgerton.
- ^"INDEPTH: SVEND ROBINSON, Profile". CBC News Online. October 21, 2005. Archived from the original on 3 February 2006. Retrieved 10 January 2006.
- ^"Welcome to Our Website". Christian Heritage Party of Canada. Archived from the original on 2 April 2006. Retrieved 2 April 2006.
- ^"7. CIVIL GOVERNMENT". Christian Heritage Party of Canada. Archived from the original on 25 May 2007.