Distinction Amidst Commonality
The Unique Principles of the Charter of Rights and Freedoms

By Alice Huang
Steveston Secondary

s a mirror of current societal beliefs, laws reflect a country’s national identity. While Canada shares similar values with other nations, the Charter of Rights and Freedoms truly sets Canada apart from other civil rights legislations. The Charter of Rights and Freedoms advocates the diversity of Canadian society and guarantees freedoms that extend beyond boundaries definable by constitutionalized law. Consequently, compared to other countries, our judiciary plays a significant role in interpreting the law. The wide scope of the Charter, encompassing official language to aboriginal rights, reflects our commitment to social diversity. However, the notwithstanding clause demonstrates that Canada is not completely restricted by the written constitution. The foresight to address the uncertainties of law is a testament to the uniqueness of the Charter of Rights and Freedoms.

In the era of globalization, the extensive movement of people contributes to the creation of an increasingly heterogeneous society. Nationality and citizenship are no longer synonymous with a specific ethnicity. Despite the progress away from assimilation, no developed nations have the policy of multiculturalism directly embedded in their constitutions. The Council of Europe, representing 46 nations, employs the European Convention on Human Rights to safeguard fundamental freedoms. Although Articles 9 and 11 guarantee the freedoms of religion and association, the European Convention fails to recognize the multiethnic composition of its member states, such as Russia and Bosnia and Herzegovina.^[1] A little more than a decade ago, the Balkan states were torn apart by ethnic rivalry. Canada is just as ethnically diverse, yet has never resorted to a civil war over cultural differences. In Canada, Section 27 of the Charter of Rights and Freedoms Guarantees that the Charter is “interpreted in a manner consistent with the preservation and enhancement of [our] multicultural heritage.”^[2] Although Section 27 is just a single sentence, this clause has far-reaching legal and moral implications.

After the adoption of the Charter, Canada’s judiciary assumed a greater role in interpreting our constitutional rights. Recently, the multiculturalism clause evoked a positive court decision on a controversial issue. In 2001, a Quebec school board forbade Gurbaj Singh to wear the kirpan – a ceremonial dagger of the orthodox Sikh religion – to school.^[3] Denied his right to freedom of religion, Singh took his case to the courts. In March 2006, the Supreme Court of Canada ruled 8-0 that the school board’s decision violated Singh’s individual rights.^[4] Justice Louise Charron asserts that the ban was “disrespectful to believers in Sikh religion and does not take into account Canadian values based on multiculturalism.” ^[5] Evidently, Section 27 demonstrates that Canada is legally obliged to promote diversity. In a recent worldwide survey, Canada ranked first among twelve major nations for having the most positive image.^[6] The Charter plays dominant role in creating Canada’s renowned impression of cooperation and cultural respect. The Right Honourable Jean Chrétien, the Minister of Justice during the creation of the Charter, declare: “We have established … a distinct Canadian model: [the] accommodation of cultures.”^[7] While Section 27 of the Charter of Rights and Freedoms applies mostly to legal matters, the clause illustrates that diversity is a foundation of our national character.

Canada is shaped by a myriad of peoples united by a history of intercultural relations. Although our history is not completely free of ethnic tensions, the Right Honourable Adrienne Clarkson believes that “it is a strength and not a weakness that we are … built on a triangular foundation – aboriginal, francophone and Anglophone.” ^[8] Canada has always teetered on a political precariousness between English and French control, especially over language rights. However, in the legal sense, the Charter clearly outlines that “English and French are the official languages of Canada and have equality of status.” While some critics would argue that two official languages leads to further dissension, recognizing both English and French gives us a distinct national identity. Additionally, Canada’s legacy of intercultural relations is evident in Section 25 of the Charter, concerning Aboriginal rights and freedoms. The United States and Canada share a similar history of negotiating treaties with the Native populations, yet the American Bill of Rights has no reference to the treaties or proclamations made with Native Americans.^[9] Section 25 of the Charter contains references to the Royal Proclamation of 1763 and recognizes “any rights or freedoms that now exist by way of land claims agreements or may be so acquired.” Canada remains faithful to the special benefits given to the Aboriginal peoples through treaty negotiation, even though these treaties were signed centuries ago. While Canada is one of the most progressive nations in the world, we also respect the assurances we have made in the past.

The charter of Rights and Freedoms is distinctive because it clearly lists the rights of specific peoples, but also leaves the application of the law to open interpretation. Section 1 of the Charter guarantees “the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Unlike the European Convention on Human Rights or the American Bill of Rights, the limitation clauses of the Charter are very general in scope. Most sections of the Charter contain a degree of ambiguity, but this vagueness allows the Charter to provide equal representation to all, even if the constitution is violated. Ultimately, the greatness of the Charter lies in the fact that it is willing to recognize the uncertain equilibrium between individual and collective rights.

Today, the Charter of Rights and Freedoms is renowned for its unique capacity to simultaneously guarantee equality and special considerations. The Charter unites all Canadians, for Canada was founded on the cooperation between cultures and will continue to be the exemplar of diversity. However, the ambiguity of the Charter continuously leads to one unanswered issue: question quid juris – the question is, what is the law? Although interpretation is left to the judges, the Charter of Rights and Freedoms stands for quintessential Canadian values: multiculturalism, equality, and the readiness to address the uncertainties of law.

1 “Convention for the Protection of Human Rights and Fundamental Freedoms.” Council of Europe. 2004.11 Mar 2007. http://conventions.coe.int/treaty/en/treaties/html/005.htm

2 Department of Justice Canada. “Canadian Charter of Rights and Freedoms.” Government of Canada. 2007 10 Mar 2007. http://laws.justice.gc.ca/en/charter/index.html

3 CBC News Canada. “Ban on Sikh kirpan overturned by Supreme Court.” CBC. 2 Mar 2006. 11 Mar 2007. www.cbc.ca/canada/story/2006/03/02/kirpan-scoc060302.html

4 CBC News Canada. “Ban on Sikh kirpan overturned by Supreme Court.”

5 CBC News Canada. “Ban on Sikh kirpan overturned by Supreme Court.”

6 Associated Press. “Canada has most positive image worldwide: Survey.” TheStar.com. 05 Mar 2007. Toronto Star. 11 Mar 2007. www.thestar.com/News/article/188472

7 Canadian Heritage. “Canadian Diversity: Respecting Our Differences.” Government of Canada. 20 Jan 2004. 11 Mar 2007, www.pch.gc.ca/progs/multi/respect_e.cfm

8 Canadian Heritage. “Canadian Diversity: Respecting Our Difference”

9 USINFO. “The Bill of Rights.” Bureau of International Information Programs. 2007. U.S. Department of State. 11 Mar 2007. http://usinfo.state.gov/usa/infousa/facts/funddocs/billeng.htm