11.3 The Charter of Rights and Freedoms and its Impact

The Charter of Rights and Freedoms, enacted in 1982, was a game-changer for Canadian civil liberties. It guaranteed fundamental freedoms, democratic rights, and equality for all Canadians, becoming a cornerstone of national identity.

This pivotal document reshaped Canada's legal landscape, empowering courts to interpret and enforce constitutional rights. It sparked debates on judicial activism and constitutional supremacy, influencing key social issues like same-sex marriage and Indigenous rights.

Constitutional Protections

Charter of Rights and Freedoms

• Enacted in 1982 as part of the Constitution Act, 1982
• Guarantees certain political rights to Canadian citizens and civil rights to everyone in Canada
• Applies to the federal government and the provincial governments
• Designed to unify Canadians around a set of principles that embody those rights

Fundamental Freedoms and Democratic Rights

• Fundamental freedoms include freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly, and freedom of association
• Democratic rights include the right to participate in political activities and the right to a democratic form of government
  • Right to vote in elections for members of the House of Commons and legislative assemblies (Section 3)
  • Elections must be held at least every five years (Section 4)
  • Annual sitting of Parliament and legislatures is required (Section 5)

Mobility, Legal, and Equality Rights

• Mobility rights include the right to enter and leave Canada and to move to and take up residence in any province
• Legal rights protect individuals from unfair treatment in the legal system and ensure rights to life, liberty, and personal security
  • Includes rights related to search and seizure, arrest and detention, trial within a reasonable time, and presumption of innocence (Sections 8-14)
• Equality rights guarantee equal treatment before and under the law, and equal protection and benefit of the law without discrimination

Aboriginal Rights

Section 35 of the Constitution Act, 1982

• Recognizes and affirms existing aboriginal and treaty rights of the aboriginal peoples of Canada
• Includes Indian, Inuit, and Métis peoples
• Protects traditional practices such as hunting and fishing
• Requires the government to consult with Indigenous groups and address their concerns related to aboriginal title and rights

Judicial Interpretation

Judicial Activism and Constitutional Supremacy

• Judicial activism involves courts making bold decisions that may challenge laws or government action
  • Criticized by some as undemocratic, but seen by others as a check on government power and a protection of minority rights
• Constitutional supremacy means the Constitution is the supreme law of Canada
  • Any law inconsistent with the Constitution is of no force or effect to the extent of the inconsistency
• Courts, especially the Supreme Court of Canada, play a crucial role in interpreting and enforcing the Constitution and the Charter
  • Decisions have shaped issues like same-sex marriage, abortion rights, Indigenous land claims, and assisted dying