Canadian Charter of Rights and Freedoms

The Charter was preceded by the Canadian Bill of Rights, enacted in 1960, which was a federal statute rather than a constitutional document. The Bill of Rights exemplified an international trend towards formalizing human rights protections following the United Nations' Universal Declaration of Human Rights,^[1] instigated by the movement for human rights and freedoms that emerged after World War II.^[2] As a federal statute, the Bill of Rights could be amended through the ordinary legislative process and had no application to provincial laws.^[1] The Supreme Court of Canada also narrowly interpreted the Bill of Rights, showing reluctance to declare laws inoperative.^[a] Between 1960 and 1982, only five of the thirty-five cases concerning the Bill of Rights that were heard by the Supreme Court of Canada resulted in a successful outcome for claimants.^[1] The relative ineffectiveness of the Canadian Bill of Rights motivated many to improve rights protections in Canada. The British Parliament formally enacted the Charter as a part of the Canada Act 1982 at the request of the Parliament of Canada in 1982, the result of the efforts of the government of Prime Minister Pierre Trudeau.


The Charter greatly expanded the scope of judicial review, because the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Canadian Bill of Rights. Canadian courts, when confronted with violations of Charter rights, have struck down unconstitutional federal and provincial statutes and regulations or parts of statutes and regulations, as they did when Canadian case law was primarily concerned with resolving issues of federalism. The Charter, however, granted new powers to the courts to enforce remedies that are more creative and to exclude more evidence in trials. These powers are greater than what was typical under the common law and under a system of government that, influenced by Canada's parent country the United Kingdom, was based upon Parliamentary supremacy. As a result, the Charter has attracted both broad support from a majority of the electorate and criticisms by opponents of increased judicial power. The Charter applies only to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to the common law, not to private activity.

Criticism[edit]

While the Charter has enjoyed a great deal of popularity, with 82 percent of Canadians describing it as a good thing in opinion polls in 1987 and 1999,^[24] the document has also been subject to published criticisms from both sides of the political spectrum. According to columnist David Akin (2017), while most Liberals support the Charter, most Conservatives, most New Democrats, most Indigenous people, and Québécois see the Charter as "problematic" and "something to be challenged in order to be Canadian".^[37]


One left-wing critic is professor Michael Mandel (1989),^[f] who wrote that, in comparison to politicians, judges do not have to be as sensitive to the will of the electorate, nor do they have to make sure their decisions are easily understandable to the average Canadian citizen. This, in Mandel's view, limits democracy.^[34]: 446 Mandel has also asserted that the Charter makes Canada more like the United States, especially by serving corporate rights and individual rights rather than group rights and social rights.^[34]: 446 He has argued that there are several things that should be included in the Charter, such as a right to health care and a basic right to free education. Hence, the perceived Americanization of Canadian politics is seen as coming at the expense of values more important for Canadians.^[34]: 446 The labour movement has been disappointed in the reluctance of the courts to use the Charter to support various forms of union activity, such as the "right to strike".


Conservative critics Morton and Knopff (2000) have raised several concerns about the Charter, notably by alleging that the federal government has used it to limit provincial powers by allying with various rights claimants and interest groups. In their book The Charter Revolution & the Court Party (2000), Morton and Knopff express their suspicions of this alliance in detail, accusing the Pierre Trudeau and Chrétien governments of funding litigious groups. For example, these governments used the Court Challenges Program to support minority language educational rights claims. Morton and Knopff also assert that crown counsel has intentionally lost cases in which the government was taken to court for allegedly violating rights,^[g] particularly gay rights and women's rights.^[23]: 95


Political scientist Rand Dyck (2000), in observing these criticisms, notes that while judges have had their scope of review widened, they have still upheld most laws challenged on Charter grounds. With regard to litigious interest groups, Dyck points out that "the record is not as clear as Morton and Knopff imply. All such groups have experienced wins and losses."^[34]: 448


Political philosopher Charles Blattberg (2003) has criticized the Charter for contributing to the fragmentation of the country, at both the individual and group levels. In encouraging discourse based upon rights, Blattberg claims the Charter injects an adversarial spirit into Canadian politics, making it difficult to realize the common good. Blattberg also claims that the Charter undercuts the Canadian political community since it is ultimately a cosmopolitan document. Finally, he argues that people would be more motivated to uphold individual liberties if they were expressed with terms that are much "thicker" (less abstract) than rights.^[38]