The Canadian Charter of Rights And Freedoms - a Flawed Piece of Legislation

Thirty-Eight years ago, nine signatures on a document pushed Canada into a new era. To a majority of Canadians, the Charter of Rights and Freedoms is a symbol of national identity. People are proud of it and embrace the charter as a mission statement. A symbol of equality and freedom. Almost four decades later, the charter is reduced to an outdated and confusing document, rarely used in courts. This study will focus on proving that the Canadian Charter of Rights and Freedoms is a flawed piece of legislature which needs more than a few amendments but a complete overhaul

Responsibilities of citizens to their nation

Responsibilities of the citizens to the nation are an essential part of the constitution of a democratic nation. Governments are responsible for providing services that individuals cannot effectively provide for themselves. (encyclopedia.com, n.d.) The government is accountable to the citizens, as it works for them. In a similar way, citizens have a responsibility to their government and thus, to their nation.

Responsible citizens are essential for a nation. It is not enough to imply the qualities of a responsible citizen in subtle ways. In the digital age, where the mind can wander and information be twisted by the overwhelming amount of information from various media, there is a requirement for the responsibilities of a citizen to be explicitly stated. The relation of a government and its citizens goes both ways. “Democracy is direct self-government, over all the people, for all the people, by all the people” (Lincoln, 1863).

Without these responsibilities explicitly stated in the Charter, there is a danger that some people can use sections of it to affirm their own rights while ignoring the rights of others. (McLachlin, 2007).

The question of collective rights over individual rights

Collective rights are special rights bestowed to Canadian population groups in order to affirm the collective identity of groups in society. This is integral to the foundation of Canada since Canadians reside on conquered soil which originally belonged to the First Nations. Canada would not exist without the contribution of these peoples. Currently section 25 of the Charter of Rights and Freedoms and the Rights of The Aboriginal Peoples of Canada guarantees collective rights to the aboriginal people of Canada (which includes Metis, Indian and Inuit people). (Canadian Charter of Rights and Freedoms, 1982; Rights of the Aboriginal Peoples of Canada, 1982).

In a similar way, due to both French and English being official languages of Canada, Francophone communities in English speaking majority areas and Anglophone communities in French speaking majority areas are given special collective rights. These collective language rights allow them to seek primary and secondary school instruction in their choice of language.

Collective rights are beneficial for communities that have historically faced oppression. Problems arise when these collective rights hinder the majority of the nation in a certain way. In 2011, 23.2% of the population spoke French and 75.0% of the population spoke English. (Statistics Canada, 2011). Despite the French speaking population being the minority, one still needs to be fluent in both French and English in order to be officers of the parliament, which includes the Prime Minister and members of the Senate and the parliament. Many federal government jobs are reserved especially for French-English bilinguals. (Office of the Commissioner of Official languages, n.d.).

This is especially discriminatory towards immigrants. 1.268 billion people speak English, all around the world compared to only 276.6 million French speakers (Ethnologue, 2019). Through this data, we can infer that there are more immigrants making Canada their home, who can speak English. For a foreign national who has struggled to learn one language other than their mother tongue, it is very difficult for them to climb their way to the position of power. If multicultural heritage is indeed protected by the Charter, we face a dichotomy when we examine this predicament.

A vaguely worded document

Section 1 of the Canadian Charter of Rights and Freedoms, is a very confusing beginning to a document that is immensely important to the Canadian identity. The Charter guarantees rights and freedoms prescribed by law demonstrably justified in a democracy. More than answers, more questions arise from this section. Firstly, it is unclear, what ‘law’ refers to. Secondly, who is responsible to determine if a limitation to rights and freedoms is unfair? (Perras, 1982). If the answer to that question is the Judiciary, then another fault with the Charter is exposed, that the judiciary has too much power. This is problematic as Judges are not elected by the people, so their interpretations can never accurately reflect the desires of the common man.

Another example of a vague, yet significant clause would be Section 7. (Canadian Charter of Rights and Freedoms, 1982) It guarantees the right to life, liberty and security of a person and the rights can be accomplished if the principles of fundamental justice are followed. It is unclear what these principles are, as they are not elucidated in the Charter. This phrase seems to be an appendix left in the Charter, as we can learn from older Canadian case law terminology. “In Hogarth (1972)·7 C.C.C.(2d) 567 the court held notice was required pursuant to the principles of fundamental justice.” (Perras, 1982). Leaving such clauses in one of the most important documents of Canada, is dangerous to say the least, as it can be abused and misinterpreted quite easily.

The Charter affects the democratic process adversely. It places social issues, which are meant to be in the purview of the legislature, in the hands of the judiciary. In an ideal world, the legislature is supposed to initiate laws, and the judiciary would respond if the laws held up constitutionally. However, this is not the case, what happens is that the judiciary has become responsible for interpreting the Constitution which includes the Charter. Due to the vague use of words in the Charter, it causes politicians to shunt difficult questions to the judiciary. (McLachlin, 2007)

The charter leads to collusion of criminal and civil law. It can make criminal trials longer and more complex as there are many more grounds which evidence can be challenged. These challenges take a great deal of time to resolve and in jury trials, pose major difficulties. (McLachlin, 2007). The Charter promises a person to be tried within reasonable time. (Canadian Charter of Rights and Freedoms, 1982). This can no more be guaranteed. Often it occurs, that multiple accused are tried together in court. Due to additional challenges and a plethora of new evidence techniques which have been discovered since the inception of the Canadian Constitution, it may lead to a case buckling in on itself. As was observed on a trial of alleged gang offences in Edmonton in 2004. (Trang, 2004).

Hence, due to the difficulty of its interpretation, the ability to fight for constitutional protections has been tougher than ever. The government reinstated the Court Challenges program in 2017, but it is massively underfunded. (Court Challenges Program, n.d.) Even though the program was for minority language groups, it could have been implemented in a much better way for universal assistance in constitutional protections.

Canada does not provide monetary compensation to its people whose constitutional rights are breached. Charter claim lawsuits cost millions of dollars and governments fight them with all their might, to protect their image. The average citizen simply does not have the accessibility to fight these cases and even if they do, there are no laws that bind the Canadian Government to pay damages to the litigant. (Tyler, 2007)

Conclusion

The sad truth about the Canadian constitution is that, a lot of nations have based their constitution on it. The constitution as a whole is brought down majorly by Section 1 (The Canadian Charter of Rights and Freedoms).

The current situation of the Charter can be summarized in this quote:

• 'It doesn't seem right that the government enacts the Charter and commits itself to having individuals protected through our justice system, and yet makes it economically impossible for that to happen,' said Paul Schabas, a Toronto lawyer who's fought Charter cases pro bono and heads an organization called Pro Bono Law Ontario.” (Tyler, 2007)
• Until politicians work towards fixing this major flaw in our legislature, the state of the constitution will be the same. It will forever remain a symbol and will never be practical in purpose.