The Charter of Rights and Freedoms
The substance of the Charter and the human rights legislation of provincial governments differ in two aspects. First, it is only effective against the legal system and legislators, while provincial legislation primarily regulates the activities of individuals and companies. Second, the Charter mainly addresses laws and their application in court, whereas provincial legislation pertains to facts in the marketplace, such as buying, selling, or renting. Therefore, the protections offered by the Charter are more macro and principled, while provincial legislative protections are more micro and specific.
Rights Protected by the Charter
When Section 10 of the Charter came into effect on April 17, 1985, a new chapter in Canadian human rights legislation began. This does not mean that many new rights were born, but rather that the status of these rights in court was established from that point onward.
The Charter includes several different types of rights. Sections 2 to 5 outline democratic rights, many of which were previously part of the "unwritten" section of the Canadian Constitution. These include guarantees of elections and democratic governance, as well as freedoms of speech, assembly, and publication. Sections 7 to 15 primarily address legal rights, such as the presumption of innocence for defendants before conviction, protection against cruel and unusual punishment, the right to a speedy trial, and personal security rights. Sections 16 to 23 clarify language rights.
Since the Charter is part of the Constitution, it takes precedence over other statutes, and many rights that were previously accepted have now been elevated to the status of the Charter. This practice has two significant impacts: "the politicization of the judiciary and the judicialization of politics."
On one hand, legislators at all levels must do their utmost to ensure that their legislation does not conflict with the Charter. Parliament and provincial legislatures have repealed some past legislation to avoid being struck down by the courts. When legislating, they are acutely aware of the power and sentiments of the courts, and thus must adhere to the rules. Politicians are now accountable to both the people and the judiciary.
On the other hand, the courts have also become more proactive. The legal community has begun to call for cases to test the Charter, thereby redefining the role of the courts in interpreting legislation, and some lower court judges have made significant strides in this regard. Moreover, the Supreme Court of Canada has ruled that it has the authority to review every action of the government, including the functions of the Cabinet.
Rulings Based on the Charter
So far, the Charter has overturned laws prohibiting Sunday shopping, guaranteed language rights in Quebec, eliminated the "presumption of guilt" clause (which required defendants to prove their innocence), and strictly limited police searches, arrests, and interrogations.
In 1989, the Supreme Court ruled in favor of a law student from British Columbia who had been denied entry to law school because he was not a Canadian citizen. In its ruling, the court found that although the Charter does not explicitly prohibit discrimination based on nationality, the relevant provisions allow for broad interpretation. Therefore, the court ruled that discrimination based on nationality, similar to other forms of discrimination, must be prohibited.
In August of the same year, the issue of abortion resurfaced in court. In the 19 months prior, Canada's abortion laws had just been struck down by the Morgentaler decision. In this ruling, the Quebec Superior Court overturned the previous court decision that prohibited Dr. Henry Morgentaler from performing abortions, a case that was highly publicized at the time.
Dr. Morgentaler decided to terminate her pregnancy after breaking up with her boyfriend. Her ex-boyfriend claimed he had a stake in the fetus and sought a court order to prevent her from having an abortion, winning in the initial trial.
The initial ruling sparked significant dissatisfaction among women's groups, as well as some supporters of abortion rights and legal experts. This case became a major legal battle between the pro-choice and anti-abortion camps.
The Quebec Superior Court's ruling ultimately favored the pro-choice camp. Prior to this, the Supreme Court of Canada had ruled that the abortion provisions in the Criminal Code were invalid because they interfered with the rights to "life, liberty, and security of the person" protected by the Charter.
Concerns of Experts
To date, the majority of lawsuits related to the Charter have resulted in protections for individuals against discrimination or tyranny by state power. However, some experts are concerned that this trend may go too far in the future. They believe that the Charter should protect both individual and collective rights, and differing interpretations could diminish collective rights.
They argue that some individuals may wish to protect their freedom of speech rights and therefore refuse to financially support actions that oppose the majority's views, which could jeopardize the labor movement. Others suggest that large corporations, as legal entities, may also seek rights originally granted only to natural persons, such as freedom of speech, property rights, assembly, and political party processes. This would make it extremely difficult for the government to oversee and regulate their activities.