CANADA LEGAL SYSTEM
SOURCES OF CANADIAN LAW - Part 3
The Canadian Charter of Rights and Freedoms
In Canada, protection of the individual's rights and freedoms is a subject of both federal
and provincial jurisdiction. The territorial governments also may legislate to protect human rights, since the federal government
has delegated to them the powers to do so. The Canadian Bill of Rights, which was passed in 1960, was the first federal legislative
enactment to specifically set out fundamental human rights for Canadians. The Canadian Human Rights Act (CHRA), which was
first enacted in 1977, also protects human rights, particularly in the areas of employment, the provision of accommodation,
and commercial premises. Unlike the Bill of Rights, the CHRA applies not only to the federal government but also to the private
sector. All provinces and territories also have human rights legislation that prohibits discrimination on various grounds
with regard to employment matters and the provision of goods, services and facilities. This legislation applies to discrimination
by individuals in the private sector and by provincial or territorial governments.
The protection provided by all of the above-mentioned legislation is limited. Because the Bill of Rights, the CHRA, and
all provincial human rights codes are only statutes, they are always subject to repeal. It was not until the advent of the
Canadian Charter of Rights and Freedoms that human rights in Canada were expressly protected in the Constitution.
the Constitution was patriated in 1982, the Canadian Charter of Rights and Freedoms became a fundamental part of our Constitution.
The Charter applies to the provincial legislatures as well as to Parliament. The Charter is paramount over other legislation
because it is "entrenched" in the Constitution and is the supreme law of Canada. This means that when an individual who believes
that Parliament or a legislature has violated guaranteed rights asks the courts for help, the courts may declare the law in
question to be invalid insofar as it conflicts with the Charter. In addition, courts may provide other appropriate remedies
to individuals whose rights have been infringed. However, the Charter also recognizes that, in a democracy, rights and freedoms
are not absolute. For instance, freedom of expression is guaranteed, but no one is free to yell "fire" in a crowded theatre,
to slander someone or to spread hate propaganda. In Canada, Parliament or a provincial legislature can limit fundamental rights,
but only if that government can establish that the limit is reasonable, is prescribed by law, and can be justified in a free
and democratic society. This allows for the balancing of the interests of society against the interests of individuals to
determine if limits on individual rights can be justified.
Under the agreement between the federal and provincial governments
that resulted in the Constitution Act, 1982, both Parliament and the provincial legislatures retain a limited power to pass
laws that may violate certain Charter rights. Many believe that such a provision is consistent with our democratic principles
because it gives the legislatures, whose members are elected, the last word, as opposed to the unelected judiciary. Nonetheless,
it is limited in that Parliament or a provincial legislature must specifically declare that it is passing a law "notwithstanding"
specified provisions of the Charter. Further, the declaration must be reviewed and re-enacted at least every five years; otherwise,
it will not remain in force. These conditions act as a kind of warning to Canadians, and force the government that is invoking
the notwithstanding clause to explain itself, to accept full responsibility for its actions, and to take the political consequences.
The Charter protects our rights and freedoms in the following areas.
The Charter constitutionally protects certain fundamental freedoms
that custom and law over the years had made almost universal in our country. Everyone in Canada has a right to practise any
religion or no religion at all. We are free to speak our minds, to gather peacefully into groups and to associate with whomever
we wish, as long as we do not infringe the legal and constitutional rights of others. Unlike the situation that exists in
many totalitarian countries, the freedom of the media to print and broadcast news and other information is guaranteed in Canada.
The tradition of democratic rights in Canada is specifically guaranteed
by the Charter. This means that Canadian citizens have a constitutional right to vote in elections for members of Parliament
and provincial legislatures, and to seek election themselves. A few restrictions on a citizen's right to vote or to run in
an election have been found to be reasonable in a democratic society; for example, restrictions on minors or on certain election
officials who may have to cast a deciding ballot. Another democratic protection is that our governments cannot continue to
hold power indefinitely without calling an election. The Charter requires governments to call an election at least once every
five years. The only exception is in a time of national emergency, such as war. But, even then, two thirds of the members
of Parliament or a legislature must agree to delay the election. The Charter also provides that Parliament and the provincial
legislatures must sit at least once a year. This ensures that our governments perform the work for which they were elected,
and also that they will have to answer questions and explain themselves in public; they cannot govern in secret.
Canadian citizens have the right to enter, remain in or leave the
country. Citizens and permanent residents have the constitutional right to live or seek work anywhere in Canada. This includes
the right to live in one province and work in another. Further, the Charter prevents provinces from distinguishing between
residents and newcomers. For example, if a person is a qualified professional in a province, such as an accountant or a teacher,
that province cannot prevent him or her from working there because that person resides elsewhere in the country. However,
this does not prevent a province from making residency a requirement for certain social and welfare benefits, nor does it
prevent the application of other laws or practices of general application in force in the province that do not discriminate.
Also, a province in which the employment rate is below the national average has the right to undertake programs for socially
and economically disadvantaged residents of the province.
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