The Canadian Charter of Rights is regularly mocked and ridiculed because of its built-in defects. For examples, there’s Section 1, which allows for the “reasonable limitations” on those rights. However, it’s a bit baffling why the Bill of Rights wouldn’t be the default laws to rely on in major court cases, when it comes to Constitutional matters.
It makes little sense to launch any challenge when not using the strongest laws available. Is the goal to lose on purpose?
Section 1, in principle, seems fine, as it’s governed by the Oakes Test:
The Government must established something is “pressing and substantial.” While this is often not difficult, there’s a 3 part test that follows.
- The remedy sought must be RATIONALLY connected to the purpose
- The remedy sought must create a LIMITED IMPAIRMENT to society
- The remedy sought must be PROPORTIONATE, and not overreaching
Sounds fine in principle. However, the last few years have shown that Judges are all too willing to bend the rules for some abstract sense of the “greater good”. The Bill of Rights doesn’t have this.
In fairness, it’s rather naive to trust laws and politicians. However, switching to the Bill would remove an obvious weakness.
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:
Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Bill of Rights
Marginal note: Recognition and declaration of rights and freedoms
1 It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(f) freedom of the press.
2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to:
(a) authorize or effect the arbitrary detention, imprisonment or exile of any person;
(b) impose or authorize the imposition of cruel and unusual treatment or punishment;
(c) deprive a person who has been arrested or detained
(i) of the right to be informed promptly of the reason for his arrest or detention,
(ii) of the right to retain and instruct counsel without delay, or
(iii) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful;
(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or
(g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.
The above sections are similar to the Charter in regards to: fundamental freedoms (Section 2); security of the person (Section 7); unreasonable search and seizure (Section 8); arbitrary detention (Sections 9 & 10); rights in criminal proceedings (Section 11); and cruel and unusual punishment (Section 12). Again, there’s no loophole which allows a court to simply suspend those rights.
There’s also no Section 33, the Notwithstanding Clause, to allow Parliament to simply legislate blatantly unconstitutional things into law. However, the start of Part 2 may be seen as one.
There is also this at the end: “(3) The provisions of Part I shall be construed as extending only to matters coming within the legislative authority of the Parliament of Canada.” Therefore, it may not apply to Provincial matters.
An interesting video from last year, from a lawyer with a different opinion.
Just something to think about.