One of the biggest effects of the Charter is on the role of judges.
Over the years, Canadian courts have struck down over 70 laws because they offended the Charter. This doesn't mean these laws died forever. A lot of the time when judges strike down a law, the government goes back to the drawing board, to see how to avoid stepping on Charter rights.
For example, when the courts struck down the government's total ban on tobacco ads, the government didn't give up. It went back and fixed the law so only the very worst kinds of tobacco ads were outlawed. This kind of back and forth has had a positive effect on Canada. It creates a kind of conversation between judges and politicians to help make sure our laws are true to the Charter.
How does this work in other countries? How do you think the roles of politicians and judges should interact regarding rights and freedoms?
Prime Minister Trudeau thought the Charter would help unify Canada. He believed that the Charter could strengthen our national identity by promoting common values and ideals shared by all Canadians.
Fast forward 13 years after the birth of the Charter to the 1995 referendum in Quebec. Only a narrow majority of Quebecers voted to stay in the country.
Considering this barely-avoided unity crisis, has the Charter really had the unifying impact Trudeau predicted? Since Quebec is the only province to refuse to sign the Charter and has used the notwithstanding clause the most, maybe you could say the Charter is more of a divider than a unifier.
What do you think? Should Quebec sign the Canadian Constitution? Has the Charter helped to unite or divide Canada?
Did you know Quebec had a Charter before Canada did? The Quebec Charter was created in 1976 and is at the top of Quebec's legal food chain. Only the Canadian Constitution can overrule it. Even though Quebec enacted it's Charter six years before Canada did, in many ways Quebec's Charter is more advanced. For example, while the Charter is silent about economic and social rights, the Quebec Charter guarantees people in Quebec a right to social assistance. Quebec was also the first province or state in the world to protect people from discrimination due to sexual orientation.
The Night of Long Knives. It sounds like a movie title: a murder mystery, or maybe a slasher film. In reality, it has more to do with political intrigue. "The Night of Long Knives" is Quebec Premier René Lévesque's nickname for the night of November 4, 1981. On that night, in the kitchen of the Chateau Laurier, two provincial premiers and Attorney General Jean Chrétien came to an agreement that led to the acceptance of the Charter. Before this, eight provinces, nicknamed the "Gang of Eight," were against Prime Minister's Trudeau's proposed constitutional changes. To Premier Lévesque, the only member of the Gang of Eight not staying at the Chateau Laurier, the sudden defection of the rest of his gang to the federal camp was like a long knife stabbing him in the back while he slept peacefully across the river in Hull.
The history of the Charter is a story of the quest for a just and equal society. But the story is not over. The words of the Charter are admirable and inspiring, but they're empty unless they are applied in a way that honours their spirit. As people continue to demand their rights and freedoms are respected, society gets closer and closer to the ideals that underlie the Charter. So you could say the story of the Charter has yet to be fully told.
One of the most important features of the Charter is the way it helps minorities and vulnerable groups. Equality rights protect vulnerable groups from discrimination. The freedom of self-expression allows people whose views are different from the mainstream to express themselves freely. Democratic rights make sure minorities and vulnerable groups are never again denied the right to vote. In fact, you could say that the main purpose of the Charter is to stick up for the little guy. Does this mean people who aren't part of a distinct, recognizable minority can just ignore the Charter? Hardly. Even if you're in the mainstream of society, you can suddenly find yourself on the fringe. For example, we all get old eventually. It's possible at some point you may have to rely on the right to be free from age discrimination. What if your employer transfers you to a province where everyone speaks a different official language than you? Minority language education rights to the rescue. What if the majority of people think random strip searches at the border are a good idea to combat terrorism? The legal rights guaranteed by the Charter will most likely make sure you get to keep your clothes on. So you see, no matter where you fit into Canadian society, you should cherish and celebrate the Charter. Because you never know when it may suddenly become your best friend.
The Charter is an incredibly important document. It has entrenched the values important to our national identity into the Supreme Law of Canada. It has altered the balance between the branches of our government. It has even impacted the world at large. Many nations have looked to the Charter and Charter cases when creating and applying their own human rights guarantees. Despite all of these grand sweeping changes, the biggest influence of the Charter is how it improves the daily lives of Canadians. Things like getting a day off work to practice our faith, picking who we marry and making our own reproductive decisions all personally affect our lives. These are intimate impacts. The Charter helps Canadians live lives true to their beliefs, values and goals. As important as the Charter is to the nation and the world, it is the Charter's influence on individual Canadians that has the greatest and most profound impact.
Some of our most cherished, powerful rights are found in the Charter. But the Charter is not the only source of rights in Canada. Many of the rights and privileges Canadians enjoy come from other sources of law: aboriginals have special hunting and fishing rights through treaties, the Constitution grants certain religious communities the right to run religious schools. We are all protected from discrimination through provincial human rights codes. Many rights found in the general section of the Charter are designed to ensure that these rights are respected, and are not adversely affected by other Charter rights. So you could say that the General section contains rights that protect rights from interference from other rights. It's a bit confusing, but it's only right.
Imagine if the Charter applied to people's private lives. Boys who exclude girls from playground games could be taken to court under section 15 of the Charter. A parent's rules against swearing could be subject to a freedom of expression challenge. Children forced to sit at the kid's table at Thanksgiving could accuse their parents of age discrimination. Such widespread application of the Charter would flood the courts and bring society to a standstill. Although it would be nice if people applied these values of tolerance and fairness to their everyday lives, it's probably best that only the government is held to the standards set out in the Charter.
In Canada and in most democracies, there is something called the "separation of powers." This means the three branches of government have jobs that only they can do. The legislature's job is to make laws, the court's job is to enforce them, and the job of the executive branch is to carry out the laws through government services and agencies. Some people think the courts sometimes go beyond their job when deciding Charter challenges. Should the courts be able to say a legislation protects a particular group it previously did not protect? Should a judge be able to require the government to report back to the court to show how it's complying with Charter rights? Some people think the way the Charter has been interpreted blurs the separation of powers by allowing Courts to make decisions about how to run Canada. Others say, if the courts are not given the power to make sure Charter rights are respected, our rights and freedoms are meaningless.
Your employer fires you from your job. When asked why, your boss replies it's because you're disabled. If your employer was the government, you could challenge this decision under section 15 of the Charter, which protects against discrimination based on disability. If your employer is a private company, does this mean you're out of luck? Luckily, the answer is no. Turn to your province's human rights legislation. It protects people from discrimination in employment and in other services offered to the public.
A constitutional bill of rights was a longtime dream for Canadians. Before Pierre Trudeau managed to do it, half a dozen prime ministers tried to have human rights recognized in the Constitution. But it's not only our elected leaders from the past we have to thank for our present rights. All along Canadian history, ordinary citizens have kept the cause of human rights alive by fighting for equal rights and for fundamental freedoms. People like The Famous Five - five women from Alberta who fought all the way to England's Privy Council to have women recognized as persons under the Constitution. The famous five were not only important to women's rights; they helped establish that the Constitution is to be interpreted as a "living tree" capable of adapting to the changing values and circumstances of society. This concept of flexibility was built into the Charter. It continues to help ensure Charter rights and freedoms are relevant to the daily lives of Canadians.
Although Canada has only two official languages, many other languages are spoken here besides English and French. In the last census, Canadians listed over 100 languages when reporting their mother tongue. The number of residences whose mother tongue is something other than an official language is increasing. According to the 2001 census, about one out of six people in Canada had a first language other than French or English. Chinese was reported as being the third most common mother tongue. The increase in people speaking something other than an official language is due to immigration. Despite this trend, the two official languages are still the most commonly used in day to day life.
The Charter says in some circumstances, the Canadian government has to function in both official languages. Across Canada many people are able to function in both official languages. In the 2001 census, over 17 percent of people described themselves as bilingual. Francophones are more likely to be bilingual than people whose first language is English. The census shows, about 43 percent of francophones are bilingual, while only about 9 percent of anglophones are. While bilingualism has been increasing throughout Canada most of the increase is within Quebec. The rate of bilingualism has remained pretty much unchanged outside of Quebec.
The way the Courts interpret minority language education rights reflects a concern for the survival of language minorities. In particular, there is a concern French-speaking communities outside of Quebec will be swallowed up by the surrounding English-speaking majority. It is easy to see why this concern exists. English has become more and more dominant globally. It the most widely studied second language, the language used internationally by scientists, and its an official language in over 40 countries. Use of English first spread through the colonial influence of England, and then through the economic and cultural influence of the United States. Neither the U.S. nor Great Britain has an official language, which is interesting, so English is not an official tongue in either of the countries that made it a world language.
Before a word of English or French was ever spoken in Canada, before we became a country of two official languages and of two solitudes, the land was dense with a rich variety of cultures and languages. Cree. Ojibwe. Haida. These are just of few of the many languages spoken by the first nations of Canada. As generations of aboriginals have been swallowed up into Canadian culture, many of Canada's original languages have been lost or threatened. There has been an effort to keep these languages alive recently. Some government services are offered in aboriginal languages. In Saskatchewan, there is a court that runs trials in Cree. Inuktitut, the language of the Inuit, is an official language of Nunavut, and the language taught in schools in the Nunavik region of Quebec.
Grab a wooden match. Try to break one. Pretty easy, isn't it? Now bundle fifteen matches together and try to break them. Not going to happen is it? This is why the freedoms of assembly and association are so important. Standing alone, we can be weak. But if we get together with other people who share the same goals and views, we're unbreakable.
Canada's Charter has been an inspiration for many human rights instruments around the world. For example, South Africa modeled its Bill of Human Rights on the Canadian Charter of Rights and Freedoms. Suddenly, people who had been treated as second class citizens were guaranteed a host of rights, including the right to equality and human dignity. Even though the Charter has played a role in making sure that all South Africans enjoy equal rights, many believe South Africa is ahead of Canada when it comes to equality. South Africa's Bill of Rights guarantees all citizens have the right to such basic human needs as health, safety, clean water and housing. Canada's Charter does not go so far as to guarantee these basic necessities.
In a ceremony on Parliament Hill on April 17, 1982, a signature by Queen Elizabeth gave us our Charter rights. Suddenly, all Canadians had the right to free speech and the right to vote and many other rights. Missing though was the right to equality. For that, Canadians would have to wait. The equality rights provision was the only part of the Charter that didn't have the force of law immediately. It would not come into force until two years later, giving provincial and territorial governments time to make sure their laws treated people equally.
You may have heard of Canada's Constitution described as a living tree. This means the Charter isn't frozen in time. The Charter is seen as a living organism with the ability to change. The courts continually adjust their interpretations of Charter rights to take into account the changing needs of society. You can see this process at work in how section 15 equality rights have developed. The wording of section 15 invites the courts to expand its protection by adding new grounds upon which it is not allowed to discriminate against someone. As new groups of people have come before the courts seeking the protection the living tree of the Constitution has grown, so it now shelters many more people than ever before.
For more information about equality rights in Canada see: http://www.charterofrights.ca/en/17_00_01