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Autor: anton 04 December 2010
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Canadian Charter of Rights and Freedoms
The Charter of rights and freedoms spans from Canada's original Constitution, the British North America Act, was passed in 1867 by British Parliament. This was also known as the Constitution Act of 1867, this act founded Canada as a nation. This Act gave elected governments the highest power over political and legal institutions in the country. Power was distributed between the Federal and Provincial governments. Unlike the United States Constitution, there was no "Bill of Rights" that the government had to follow.
In 1960, the federal government passed the Canadian Bill of Rights. This law statute was not part of the Constitution. It had no more power than any other law. The Bill spoke of fundamental freedoms, legal rights and equality before the law. But if a law itself was discriminatory, the Bill of Rights was generally not helpful. As well, the Bill only applied to federal, not provincial laws.
Because Canada's original Constitution was an Act of British Parliament, it could only be changed by Britain. For many years, Canada's Prime Ministers had been looking to "bring the constitution home." Prime Minister Pierre Trudeau also wanted to include a Charter of Rights in the Constitution.
The Charter was significantly inspired by documents such as the 1948 United Nations Universal Declaration of Human Rights. Other international influences included the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, and the 1966 International Covenant on Civil and Political Rights.
In the fall of 1980, the Canadian government set up a special all-party committee to hear what people had to say about a suggested Charter. With televised hearings, the committee listened to over 300 presentations from women, Aboriginal people, people with disabilities, ethnic and cultural minorities, and others. The committee also considered 1200 written submissions about the Charter. From this, the committee made 123 recommendations to improve the Charter - over half are in the final document.
It was difficult for the provinces to agree to changes to the Constitution. On the night of November 4, 1981, in the kitchen of the Ottawa Chateau Laurier hotel, then Federal Justice Minister Jean ChrÐ“Â©tien and the Attorneys General from Saskatchewan and Ontario, Roy Romanow and Roy McMurtry, came up with a plan - popularly referred to as the "Kitchen Accord." The plan gave provinces a way of temporarily avoiding some parts of the Charter (see Clauses and Provisions - the section 33 "notwithstanding clause"). This led to stronger support from the provinces and opened the way for a Constitution that included a Charter of Rights and Freedoms.
The Charter is a part of the Constitution Act, 1982; all of which is in the Canada Act, 1982. Receiving the approval of the Britain for the last time, on April 17, 1982 in Ottawa, Queen Elizabeth II signed the Canada Act, 1982. This gave Canada control over its Constitution. The guarantee of rights and freedoms in the Charter became part of the supreme law of the land.
The equality rights section of the Charter was delayed until April 17, 1985. This gave governments time to update laws to meet equality requirements.
Having a Charter of Rights and Freedoms in our Constitution has brought Canada in line with other liberal democracies in the world, all of whom have bills of rights that can be enforced by the courts.
"When we think of the fact that the BNA Act which was the constitution we had, actually we had almost no reference whatever to rights and freedoms, to civil liberties of any kind. There were no guarantees, no protections. This country was living - people were living in a very precarious state in one sense because if there were some kind of province or some kind of federal government that wanted to impose strictures they had the full power to do it. There was no protection for individual groups or individuals or small groups or minorities and so it was again a very important need that existed. There's always the danger in a nation that the majority can become a tyranny, the tyranny of the majority over the minority. So realizing all these things, that there was no charter, no protection, these people came together in order to sign up and involve their organizations to support a Charter of Rights and Freedoms. We sent out a petition and we put out 25,000 petition forms throughout malls and places of, schools and whatever, throughout the country in order to have people sign on, themselves, indicating their support for a charter and these leaders of the multicultural organizations circulated amongst their memberships as well. And so we had then something like 300,000 people signing on this petition and we had 17 leaders of major communities, cultural communities in Canada, who said they would like to see Trudeau together and present him with these petitions and say that on behalf of these 17 organizations they want to say we support you in what you're trying to do to bring about a Charter of Rights and Freedoms."
Rev. Roland de Corneille,
Former Member of Parliament
"One of the compromises that had to be made at the time of the Constitution and trying to patriate it was of course the fact that Quebec didn't want to come in. There was this concern on the part of Rene Levesque and his Parti Quebecois to try to stay aloof from anything that would show that they were part of Canada. So it was almost an impossibility at that time to try to bring about the inclusion of Quebec although handsprings and everything were done in order to try to help convince them that this was something they should do. But unfortunately they held back. So this was of course a handicap, a limitation on the Charter that in fact Quebec has never yet signed on to the Constitution. However, nonetheless its impact is still on Quebec. Even though it hasn't signed on it accepts the fact that all these rights and freedoms and the way in which the country is managed obviously they go along with it."
Rev. Roland de Corneille,
Former Member of Parliament
"It looked like we were going to have difficulty reaching an agreement but I think Mr. Levesque made a very important strategic error because having conducted the Quebec referendum of 1980, he was committed to the referendum process. What he did not realize was that there was a very strong hostility held by the premiers in all of the other provinces against federal referendums because they regarded this as a device, a strategy, a tactic which would allow the federal government to ignore the wishes of the provincial government and simply go directly to the people of the province and say: what do you think about an amending formula? What do you think about a Charter of Rights? Mr. Trudeau, who was getting a little fed up with the whole process, said to me, well, said to all of us: "Well, maybe we'll just," with that famous shrug of his, "we'll let the Canadian people decide. We'll have a national referendum on the Charter of Rights and on an amending formula. We'll go to the people, let the people decide." I remember going over to Premier Lougheed, who clearly was one of the leaders of the opposition, certainly outside of Quebec - And saying to him: "You know the prime minister, I've had many conversations in private with him this week and he's very serious about this idea of a national referendum. So if we leave, this is what we're going to get and I know what you think of national referendums because it excludes, largely excludes, the role of the provincial government." And that was, I think, to me at least, the critical moment because that's when the seven other provinces decided that they could not go that route and they broke ranks with Mr. Levesque. So while I think it was an important and a very positive moment in Canadian history, that agreement in November of 1981, there was a down side to it and that was very much the fact that Quebec would not agree."
Roy R. McMurtry,
Chief Justice of Ontario
The Canadian Fathers in designing their political and legal systems borrowed much from Britain. They include things such as a constitutional monarchy, a responsible parliamentary system, and Common Law. The most important adoption was the principle of legislative supremacy, this meant that the House of Commons and the provincial legislatures were to be the highest legal and political bodies of Canada. This came to agreement at the Charlottetown Conference in September 1864, later incorporated into the 72 resolutions at the Quebec conference, October 1864, and finally implemented as Canada's first constitution; known as the British North American Act in 1867. Now Canada needed to obtain Britain's approval since they were the first to pass this act.
Canada, unlike the U.S. who passed their Bill of Rights almost 20 years before their nation's birth, waited almost a century before devising its own Bill of Rights. Canada's Bill of Rights was passed in 1960 by John Diefenbaker; it was a short document that guaranteed several fundamental freedoms as well as legal and equity rights. However, unlike the current charter, the Bill of Rights was not implemented into the Constitution. It was questionable to what extent the Bill could actually challenge the concept of legislative supremacy. Over the next decade, Canadian courts, not wanting to impede legislative supremacy, chose to enforce a restricted interpretation of the Bill of Rights.
There were many Prime ministers before Trudeau that attempted to implement Human rights into the Constitution.
A constitutional bill of rights was a longtime dream for Canadians. Before Pierre Trudeau managed to do it, half a dozen prime ministers tried to have human rights recognized in the Constitution. But it's not only our elected leaders from the past we have to thank for our present rights. All along Canadian history, ordinary citizens have kept the cause of human rights alive by fighting for equal rights and for fundamental freedoms. People like the famous five - five women from Alberta who fought all the way to England's Privy Council to have women recognized as persons under the Constitution. The famous five were not only important to women's rights; they helped establish that the Constitution is to be interpreted as a "living tree" capable of adapting to the changing values and circumstances of society. This concept of flexibility was built into the Charter. It continues to help ensure Charter rights and freedoms are relevant to the daily lives of Canadians.
The history of the charter is a story of the quest for a just and equal society. But the story is not over, the words of the charter are admirable and inspiring but they are empty unless they are applied in a way that honors their spirit. As people continue to demand their rights and freedoms are respected, society gets closer and closer to the ideals that underlie the charter. So you could say the story of the charter is yet to be fully told.
Did you know Quebec had a charter before Canada did? The Quebec charter was created in 1976, and is at the top of Quebec's legal food chain. Only the Canadian constitution can overrule it. Even though Quebec enacted their charter 6 years before Canada did, in many ways Quebec's charter is more advanced. For example, while the charter is silent about economic and social rights, the Quebec charter guarantees people from Quebec a right to social assistance. Quebec was also the first province or state in the world to protect people from discrimination due to sexual orientation.
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