Does the Charter of Rights and Freedoms set Canada apart from other countries in the world?

By Jessica Nichols
St. Thomas More Collegiate

he Charter of Rights and Freedoms sets Canada at the forefront of citizen rights throughout the world. Even in the western civilize world, Canada’s Charter of Rights entrenchment of a Charter of Rights and Freedoms in its Constitution guarantees Canadians and other residents of Canada specific rights that the majority of the world’s population does not have. In addition, Canada’s Charter preceded many large multination Associations in establishing Human Right Charters within their Association.

In 1982, the Canadian Parliament adopted its Charter of Rights and Freedoms within a national Constitution. The new Charter, based primarily on the 1960 Canadian Bill of Rights¹, which was limited only to federal institutions and did not have constitutional weight, was entrenched within the Constitution Act², thus protecting the Charter within the amending formula of the Constitution. In comparison to other nations, with similar Charters, their legislation is a standalone Act free to be amended by any new parliament or government authority without a formal amending process. While many argue that this makes it difficult to change a national Charter, others contend that it protects people’s rights from being changed without significant consultation.

Canada’s two major Commonwealth allies, Australia and the United Kingdom, do not have a Bill of Rights³ embedded in their Constitution and thus rely on the rule of Common Law and Acts of Parliament. The Charter in the Constitution marks a departure from the principle of parliamentary supremacy and expands the role of the courts, as federal and provincial laws must now conform to the Charter, as well as to the division of powers. Australia and the United Kingdom remain committed to Parliament being the supreme body in regards to Human Rights, thus, limiting citizen’s ability to challenge the authority of Parliament.

Outside of the Commonwealth, the European Union Charter of Fundamental Rights was drafted by the 62 members of the European Convention (headed by former German President Roman Herzog). The Charter was proclaimed (adopted) at the Nice Summit on 7th December, 2000. The convention consulted with other organizations and held open hearings with representatives from civil society. Hundreds of Non-Government Organizations submitted briefs to the Convention. This extensive process was considered a success at the Laeken European Summit in December of 2001.

While this process would support the contention that the European Charter may be superior to the Canadian Charter, this Charter is limited by the fact that it is not legally binding. However, the European Court of Justice may well refer to it as an aid in interpretation. The European Charter is directed at the institutions and bodies of the Union and to the Member States only when they are implementing Union law (Article 51). As opposed to the Canadian Charter, article 24, “Enforcement” of these rights are pervasive, thus, there is really no means for the European Union to make their Rights binding.

In addition, the European Union is a collection of independent nations. Each nation has the ability to pass or reject acts passed by the Union. Part II of the proposed constitutional treaty for the EU was the Charter of Fundamental Rights. However, the constitution was rejected by voters in France and Netherlands in 2005. Hence, Canadians do not need to reply on voters or parliamentarian of a foreign government to interpret the Charter of Rights.

There are comparable Charters of Rights with other multinational organizations similar to the European Union’s attempt. The Association of Asian Parliaments for Peace (AAPP), the Organization of African Unity and Council of Arab States have all established Human Rights Charters. Like the EU attempt, because these Associations membership include countries like China, Iran, Jordan, Syria and Yemen, the likelihood of these Charters of Rights being enforced broadly is unlikely.

Comparing Canada to its most common ally, the United States and its American Bill of Rights, both have the fundamental freedoms protected. These fundamental freedoms are freedom of conscience and religion, freedom of thought, belief, opinion and expression, including the press, freedom of peaceful assembly; and freedom of association. Both guarantee legal rights, such as the presumption of innocence; the right to life, liberty and security of the person; and security against unreasonable search and seizure. Both are Constitutional based acts with an amending formula. However, there are significant differences between the two acts. In the CanadianCharter, it states “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” a qualification not found in the U.S. Constitution.

The Charter guarantees democratic rights such as the right to vote; mobility rights, such as the right to take up residence in any province; and equal protection under the law for all Canadians (while specifically permitting affirmative action programs). It includes language provisions that are particularly Canadian: by establishing English and French as official languages and guaranteeing certain minority language education rights.

The Canadian Charter of Rights and Freedoms sets Canada apart from most nations in the world for having the Charter included it is Constitution. It makes challenges to the Charter assessable via the courts, thus taking away Parliamentary Supremacy. Lastly, Canada’s Charter protects minority rights, making it a powerful instrument for governing a multicultural society.

1 Canadian Bill of Rights 1960, c.44 c-12.3 [Assented to August 10th, 1960]
2 Enacted as Schedule B to the Canada Act 1985 (U/K/) 1982, which came into force on April 17, 1982
3 Library of Parliament of Canada “Charters of Rights in Commonwealth Countries”