Charter Of Rights And Freedoms In Canada's Constitution
There is a great deal of debate regarding the entrenchment of the Charter of Rights and Freedoms in Canada’s constitution. The Canadian Charter of Rights and Freedoms, a document that “sought to protect individual rights by preventing laws that unfairly discriminate or that take away human rights”, was entrenched when Canada’s Constitution was patriated in 1982 (Canadian Human Rights Commission [CHRC], n.d.). However, the entrenchment of the Charter of Rights in the Constitution was controversial as some believed that it transfers the power from elected representatives to the court (University of Alberta, 2013). This paper will be arguing that the entrenchment of the Charter of Rights and Freedoms in Canada’s Constitution promotes democracy
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by protecting human rights and empowering the people.
Firstly, the entrenchment of the Charter of Rights and Freedoms promotes democracy by protecting human rights; preventing laws that abridge basic human rights or discriminate from being passed, no matter the support they have.
Consequently, vulnerable groups (such as minorities) are protected, ensuring that they have a voice and are not silenced. One great example what happens in the absence of proper human rights protection is how the Chinese people got their right to vote. At the turn of the 20th century, the Chinese people only got their right to vote only because of popular opinion, not because it was their right (CHRC, n.d.). While things went favorably for the Chinese minority, it could have easily gone the opposite way and the Chinese people would never have any voting rights had public opinion turned against them. The fact that the Chinese gained voting “rights” because of popular opinion shows how human rights were at the mercy of laws passed by the government. There is no doubt that an entrenched Charter of Rights and Freedoms would have ensured that the Chinese people would have gotten their right to vote, instead of leaving this precious right at the mercy of popular opinion. Nevertheless, the Charter of Rights and Freedoms was not the first of its kind; the Bill of Rights was introduced in 1960 with similar purposes. The Bill of Rights was used in 1970 (R v. Drybones) to strike down certain discriminatory provisions of the Indian Act (Radio Canada International, 2016). In this case, an Aboriginal was convicted for being intoxicated off a reserve, which was contrary to s. 94(b) of the Indian Act. However, he was acquitted after appealing as s. 94(b) was inoperative in the circumstances as it was conflict with the Canadian Bill of Rights c. 44 (Lexum, 1969). This was so as s. 94 rendered Aboriginals guilty while any person who was not an Indian would not have been punished, infringing on the right to equality before the law. Therefore, one can see that
the Canadian Bill of Rights empowered the judges to stop discrimination. Unfortunately, the Bill of Rights was not entrenched, making it a federal law that was difficult to enforce and only offered limited protection (CHRC, n.d.). Similar to the Bill of Rights, the Charter of Rights and Freedoms protects many of the rights of the people, rights that should be protected from wanton change. The Charter of Rights and Freedoms of rights protects fundamental freedoms, democratic rights, mobility rights, legal rights, equality rights, language rights and also recognizes Aboriginal and treaty rights (CHRC, 2016). Therefore, there is no doubt that the Charter of Rights and Freedoms play a major role in the protection of human rights in Canada. Protecting this document from wanton change will ensure that important human rights are protected and the promotion of human rights results in a free society where everyone has an equal voice; ultimately promoting democratic values.
Democratic values are promoted further by the entrenchment of the Charter as it empowers the people. This evident in the fact that ever since the entrenchment of the Charter of Rights and Freedoms, the frequency at which unconstitutional laws have been struck down have increased (Correction Service Canada, 2015). This is so as the entrenchment of the Charter of Rights and Freedoms enable judges to invalidate laws that are unconstitutional, protecting people from unjust exercises of political power. John Whyte, who served as Saskatchewan’s director of Constitutional Law, notes that in the time since the entrenchment, the laws struck down by court rulings “reflect a constitutional commitment to fair and just treatment” (2012). In addition, the Charter of Rights and Freedoms have been used to challenge the decisions of correctional authorities and have also been cited by employees to bring up matters such as mandatory retirement, job security, pay equity etc. (Correction Service Canada, 2015). Moreover, cases such as Morin v. National Special and R. v. Miller have resulted in many advancements, such as the allowing offenders to retain a wide range of rights and freedoms (Correctional Service Canada, 2015).
by protecting human rights and empowering the people.
Firstly, the entrenchment of the Charter of Rights and Freedoms promotes democracy by protecting human rights; preventing laws that abridge basic human rights or discriminate from being passed, no matter the support they have.
Consequently, vulnerable groups (such as minorities) are protected, ensuring that they have a voice and are not silenced. One great example what happens in the absence of proper human rights protection is how the Chinese people got their right to vote. At the turn of the 20th century, the Chinese people only got their right to vote only because of popular opinion, not because it was their right (CHRC, n.d.). While things went favorably for the Chinese minority, it could have easily gone the opposite way and the Chinese people would never have any voting rights had public opinion turned against them. The fact that the Chinese gained voting “rights” because of popular opinion shows how human rights were at the mercy of laws passed by the government. There is no doubt that an entrenched Charter of Rights and Freedoms would have ensured that the Chinese people would have gotten their right to vote, instead of leaving this precious right at the mercy of popular opinion. Nevertheless, the Charter of Rights and Freedoms was not the first of its kind; the Bill of Rights was introduced in 1960 with similar purposes. The Bill of Rights was used in 1970 (R v. Drybones) to strike down certain discriminatory provisions of the Indian Act (Radio Canada International, 2016). In this case, an Aboriginal was convicted for being intoxicated off a reserve, which was contrary to s. 94(b) of the Indian Act. However, he was acquitted after appealing as s. 94(b) was inoperative in the circumstances as it was conflict with the Canadian Bill of Rights c. 44 (Lexum, 1969). This was so as s. 94 rendered Aboriginals guilty while any person who was not an Indian would not have been punished, infringing on the right to equality before the law. Therefore, one can see that
the Canadian Bill of Rights empowered the judges to stop discrimination. Unfortunately, the Bill of Rights was not entrenched, making it a federal law that was difficult to enforce and only offered limited protection (CHRC, n.d.). Similar to the Bill of Rights, the Charter of Rights and Freedoms protects many of the rights of the people, rights that should be protected from wanton change. The Charter of Rights and Freedoms of rights protects fundamental freedoms, democratic rights, mobility rights, legal rights, equality rights, language rights and also recognizes Aboriginal and treaty rights (CHRC, 2016). Therefore, there is no doubt that the Charter of Rights and Freedoms play a major role in the protection of human rights in Canada. Protecting this document from wanton change will ensure that important human rights are protected and the promotion of human rights results in a free society where everyone has an equal voice; ultimately promoting democratic values.
Democratic values are promoted further by the entrenchment of the Charter as it empowers the people. This evident in the fact that ever since the entrenchment of the Charter of Rights and Freedoms, the frequency at which unconstitutional laws have been struck down have increased (Correction Service Canada, 2015). This is so as the entrenchment of the Charter of Rights and Freedoms enable judges to invalidate laws that are unconstitutional, protecting people from unjust exercises of political power. John Whyte, who served as Saskatchewan’s director of Constitutional Law, notes that in the time since the entrenchment, the laws struck down by court rulings “reflect a constitutional commitment to fair and just treatment” (2012). In addition, the Charter of Rights and Freedoms have been used to challenge the decisions of correctional authorities and have also been cited by employees to bring up matters such as mandatory retirement, job security, pay equity etc. (Correction Service Canada, 2015). Moreover, cases such as Morin v. National Special and R. v. Miller have resulted in many advancements, such as the allowing offenders to retain a wide range of rights and freedoms (Correctional Service Canada, 2015).