Wednesday marked the 31st anniversary of Canada's Charter of Rights and Freedoms. In honour of Charter Day, the following is an excerpt from my paper, What makes us Canadian:
When we look for a unifying symbol with which all Canadians identify, it is certainly not the monarchy, despite the wishful thinking of our Conservative government. It is the Canadian Charter of Rights and Freedoms.
The Charter, signed into law in 1982, spells out the fundamental rights and freedoms that we can assert as individuals against all levels of government. It guarantees the equality of citizens -- the cornerstone of any liberal democracy -- ensuring that regardless of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability, all Canadians have the same basic rights and can expect equal respect for their human dignity and self-worth.
The Charter is now viewed as a model for other nations. A new American study concludes that Canada is a constitutional trendsetter in several respects. First, section 1 states that rights and freedoms are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society," which provides a way of weaving compromise and dialogue into rights debates. It offers a structure for working through the competing interests found in any multicultural nation seeking a balance between the decisions of judges (who must uphold the Charter) and the actions of legislators (who make laws that may limit rights).
Second, equality rights are listed in section 15, and the text has proved flexible; the courts have extended its protections to prohibit discrimination on the basis of sexual orientation and permit gay marriage. And the American study notes that the Charter contains a notwithstanding clause in section 33 that permits a government to bring in certain laws even if a court finds that they are contrary to the Charter. Fortunately this clause has rarely been used.
Indeed, Canada's courts often play an important role on behalf of the people of Canada, for example in taking the edge off the current government's ideological and blinkered approach to law and order and criminal justice. Judgments based on the Charter have cancelled the government's decision to shut down facilities that help those suffering from addiction and related conditions; provided greater protection for those engaged in prostitution; and held mandatory minimum sentences to be unconstitutional in some circumstances. Unfortunately, rather than complying with the fundamental law of the land, the present national government prefers to govern as if the courts are adversaries to be ignored as much as possible.
The Charter blends the emphasis on individual rights with respect for community values. For example, it requires us to take into account cultural, religious, linguistic, and Aboriginal communities in interpreting the rights guaranteed to individuals. This allows for the protection of minorities while not diminishing the ideal of the equality of all citizens under the law.
The Charter remains a concrete expression of our shared values, the rights we can expect to have respected, and the responsibilities we owe each other. It is a crucial part of what binds us together in our diversity. It is sad that our current government remains unable to rise above petty partisanship in order to celebrate the Charter with all Canadians.