25 Years of the Charter

Download the full paper:

• As PDF
• As Word document

Excerpt:

The Canadian Charter of Rights and Freedoms - The First 25 Years from an Applicant's Perspective¹

By Beverly Froese, Counsel to the Public Interest Law Centre

Introduction

A generation of young Canadians have come of age not knowing a world without the protection of their fundamental rights guaranteed under the Canadian Charter of Rights and Freedoms ("the Charter"). Even though the Charter did not create an entirely new set of rights, as some were already recognized and accepted as part of Canadian common law, it entrenched those rights in our Constitution. Section 52 states that the Constitution is the supreme law of Canada, a provision of monumental importance in that it expressly and unequivocably tells us that governments are not above the law and their decisions and actions must conform with the Charter.

Not without some controversy, the Charter has been described as a "shield, not a sword". It is the protective cloak that envelopes each and every Canadian and guarantees essential human rights that are fundamental to our freedom and democracy. The Charter recognizes and affirms basic rights such as the right to equal treatment under the law, the right to free association and expression, the right to religious freedom, the right to vote and the right to be free from unjustified and arbitrary state intervention in our lives.

As it has only been 25 years since the advent of the Charter, its jurisprudence is still in relative infancy. We cannot predict with any degree of certainty what the future holds or what direction the Courts may take over time, but as the law continues to evolve and develop, there are lessons to be learned from the past and new issues that will continue to arise.

Since the enactment of the Charter in 1982, the Courts have struggled at times to apply its provisions and have grappled to strike an appropriate balance between deference to Parliament and the Courts' legitimate role as interpreters of the law. These are not easy tasks and Courts should be applauded for not shying away from what are often difficult and controversial issues. When it comes to the constitutionality of legislation, the Supreme Court of Canada has recognized that this has always been a justiciable question that properly falls within its sphere of expertise.²

... (Download the whole paper)

---

¹ The writer would like to acknowledge and thank Byron Williams, Director of the Public Interest Law Centre for his editing assistance and Daniel Rempel, Articling Student at the Public Interest Law Centre for his excellent summary and analysis of the Chaoulli decision and his editing assistance.

² Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138