In Canada we possess rights entrenched in the Canadian Charter of Rights and Freedoms. When it was adopted in 1982, many Canadians felt that they were commencing on a new journey, one that would change the nation. The Charter represents not just a constitutional governance but for an accountable constitutional governance (McLachlin 366). The judicial branch of government that interprets the Canadian Charter of Rights and Freedoms is the courts. Therefore the courts play in an important role in protecting our rights and determining what is deemed as constitutional and what is deemed as unconstitutional. This responsibility the courts have to interpret the Canadian Charter of Rights and Freedoms allows them protect the civil liberties given to us by the Charter and thus the courts and the Charter go hand in hand. In this paper I will outline the Canadian Charter of Rights and Freedoms and continue by arguing that by interpreting the Charter, the courts are able to adequately protect our rights and strike down on laws passed by government that violate our rights with the help of case studies. Furthermore, that the courts are legitimized by their judicial independence, judicial impartiality as well as the presence of multiple levels of courts.
First, lets examine the Charter. The establishment of the Canadian Charter recognizes the importance of Canada’s multicultural nature (Rolla 331). There are 2 goals of the Canadian Charter; which guarantees the same rights to every Canadian citizen, while providing the constitutional recognition for ethnic identities living together in Canada (Rolla 331). The Charter safeguards Canadians against unwarranted government powers (Macfarlane 19). Multiculturalism involves accepting existing differences and recognizing that all ethnic communities represent the Canadian society (Rolla 332). Canadian culture has been rooted in multiculturalism, and the Charter clearly sets the framework for equality among everyone. Section 27 of the Charter allows for the promotion of the country’s “multicultural heritage” and grants members of ethnic, and religious groups to protect their cultural identity (Rolla 336). Sections 2 to 12 of the Charter consists individual rights, including the freedom of religion, the freedom of expression, the freedom of association, the rights to due process, the rights to bodily integrity and personal safety, the protection against cruel and unusual punishment, and the list goes on (Rolla 331). Furthermore, section 15(1) establishes the principle of non-discriminatory treatment under the law (Rolla 331). While section 15(2) recognizes that all Canadian citizens, no matter, their “race, national or ethnic origin, color, religion, sex, age or mental or physical disability” are equal under the law (Rolla 331).
Section 15’s actions includes Aboriginal people of Canada; a historically disadvantaged group in the Canadian society. The rights of aboriginal people have been subject to much debate since the Constitution Act, of 1982 (Isaac 432). Section 25 of the Charter affects the negative impacts of the Charter towards aboriginal people (Isaac 432). There are two kinds of aboriginal rights under section 35; aboriginal rights and treaty rights (Chartrand 110). As members of Aboriginal rights-bearing groups, an individual is entitled to the benefits provided by the group rights (Chartrand 110). Section 25, as the Supreme Court of Canada has stated, displays one of Canada’s core constitutional values; the protection of the rights of minorities (Isaac 435). A key principle for both the provincial and federal government in regards to treaty negotiations, is the assurance that the Charter will apply to aboriginal governments (Isaac 449). A prime example was the Supreme Court’s 1990 Sparrow decision, providing the aboriginal people with strengthened fishing and natural resources rights (Isaac 449). Ensuring that the Charter applies to aboriginal government in rooted in the inherent right of aboriginal self-government (Isaac 450). We can see that the Charter tries to promote the protection of minorities and further securing the core values of the Canadian society.
Canadian Legal Scholars have expanded the scope of the Charter to include the protection for social rights like health care, housing, or minimum standard of welfare (Macfarlane 49). The Charter has opened Canadian health services like abortion, supervised drug injection facilities and assisted suicide. Whether these health services are a negative or positive rights involves the closer examination of the case itself and the social policies around the case (Macfarlane 61).
Abortion is a subject plagued will much criticism and support. In R v. Morgentaler (1998), a majority of the Supreme Court struck down section 251 of the Criminal Code, which required women seeking abortions to obtain approval from therapeutic abortion committees (Macfarlane 63). Section 251 of the Criminal Code infringes upon the section 7 of the Charter so the courts are able to act upon violation of human rights. In the particular case, Justice Dickson found that the committee system caused dangerous delays in access to the service or there was no access at all (Macfarlane 63). Forcing women to find other, potentially more dangerous and life threatening institutions to perform the procedure. This was the fundamental violation of the security of the person. Therefore, the criminalization of abortions, from the perspective of a women, would be detrimental to her “security to the person” (Macfarlane 65). Under section 7 of the Charter, the protection of the “life, liberty and security” of the person protect women, and their choice of having an abortion. In this case, the courts were able to protect a woman's right to have an abortion by determining that the criminal code infringes upon the Charter.
The most controversial health service in Canada, or even around the world, is assisted suicide. In 2012, in the court case between Carter and Canada (Attorney General), prohibitions against assisted suicide was found unconstitutional and it infringed upon both equality and the right to life, liberty and security of the person by the Supreme court (Macfarlane 68). To avoid unnecessary suffering, the right of a terminally ill person to make the decision to end their lives on their own terms was the reason why the law was struck down by the courts (Macfarlane 68). Similar to abortion, by preventing those who want to end their lives, they might resort to more unsafe ways to ending their lives. Which puts their life and security at risk. Therefore, by preventing assisted suicide, you endanger the lives of terminally ill people. As we’ve seen from the above examples, the Charter acts an assessment of law that violates the rights and freedoms of Canadians and thus the courts are able to determine that such cases are violations of the Charter and in turn give the rights back to the people. The federal minister of justice is required to report to Parliament if any proposed bills or regulations is inconsistent with the Charter (Macfarlane 71).