Peter MacNeil
PSCI 422
29 SEPT 15
Dr.Brown
Charter of Rights
The true democracy requires the protection of rights and freedoms to ensure the
government is governing on the will of the people. Adopted in 1982 Canada’s Charter of Rights
and Freedoms founded on the rule of law and entrenches in the Constitution of Canada the rights
and freedoms Canadians believe are necessary in a free and democratic society. The Charter
regulates interactions between the state (federal, provincial and territorial governments) and
individuals. It is, in some respects, Canada's most important law because it can render invalid or
inoperative any laws that are inconsistent with its provisions. As the readings highlight a main
concern with the Charter is how much control and power it has given to the Supreme Court to
shape Canadian Laws. During the formation of the Charter many Provinces cited that reason for
not being committed with the idea of a Charter, concluding that the Provinces would be stronger
at defending citizens’ rights. Another concern of the Provinces was that the charter would be
used to centralize decisions and homogenize Provincial Polices (Healthcare, Education, etc). The
charter is in a constant balancing act with Canadian Federalism but at the same time ensuring to
protect all of its rulings nationwide. Though three Provinces and the Yukon have used section 33
of the charter a “Notwithstanding Clause” to voice their concern. Under section 33, parliament
and provincial legislatures can override the fundamental freedoms, equality and legal rights that
are entrenched in the Charter for a period of no more than five years. A problem in all of this is
that the Charter is anything but self-executing. It is full of vaguely worded rights and the social
science evidence that courts have at their disposal in adjudicating Charter claims is anything but
determinative. As a result, judicial decisions interpreting and applying the Charter are bound to
be controversial. Reasonable people can and do disagree about the interpretation and application
of Charter rights. So do reasonable judges, as evidenced by the number of closely divided
decisions in the Supreme Court. Not to mention a major concern among Canadians is that a
group of unelected judges are making decisions on Canadian public policy matters. Judges have
the power to strike down democratically enacted legislation put in place by the Members of
Parliament representing Canadians. Interestingly enough the Charter has influenced ANtions in
the international community, but Canada’s closest constitutional relatives the U.K., New
Zealand and Australia deny their judges the power to invalidate legislation. The rights of
Canadians has become more of a legal issue than a political one creating a fault line in Canadian
Democracy. A political Cartoon in a National newspaper a few years ago created a strong image
to show how influential the Supreme Court is through the Charter, with a cardboard cutout of
Parliament the Supreme Court was displayed hiding behind it.
Politicians are more likely now to turn to the Charter than to take a position on
controversial issues and in the end shifting political responsibility to the courts. The courts’ role
in protecting Charter rights is profoundly important, but it is binding on the courts to act
modestly in performing this role, promoting democratic resolution of our problems rather than
imposing constitutional solutions. Thirty years into the Charter, the relationship between the
legislature and the courts remains to be a controversial issue.