Charter

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Canada’s Constitutional Vision: The Charter of Rights and Freedoms

The best thing which has ever happened to Canada that makes Sir Charles proud to be Canadian[1] is the Charter of Rights and Freedoms. Thirty years ago, on April 17, 1982, Queen Elizabeth, sitting in front of Canada’s Parliament Buildings on an overcast morning, proclaimed in force the Canadian Charter of Rights and Freedoms, a key element of the new Constitution Act. The Charter, whose 30th anniversary was considered by 79% of the population worth celebrating[2], brought about many changes in Canadian society, its impact being described in revolutionary terms[3]. The focus of this essay is the analysis of the Canadian Charter of Rights and Freedoms and its impact on the world, from the individual to actual nations. To do so, the evolutions of the political arena and, consequently of human rights will be investigated, together with the examination of certain rights and freedoms as viewed through the lenses of scholars situated at opposite ends of the spectrum. Through this analysis, I will evince that the enactment of the Charter is the most significant moment in Canadian history, being a unique document and a model for the world.

The roots of the Charter are in the 1960s. It is then when Canadian politics started to be focused on discontent in Quebec over language and social policy and on the problems regarding natural resources in western provinces. To alleviate this, then Prime Minister John Diefenbaker’s Conservative government passed the Canadian Bill of Rights to prevent Canadians being hurt by various types of discrimination. By May 1980, it seemed apparent to Prime Minister Pierre Trudeau that a renewed effort for constitutional change was needed; Quebec had issued a referendum on sovereignty-association. Therefore, Trudeau appointed law professor Barry Strayer to research a constitutional bill of rights. Thus, Strayer formulated ideas that were incorporated into the Charter and that would assure Quebec would have its rights protected. In October 1980, Trudeau requested that the British government amend the BNA Act by adding an amending formula and a Canadian Charter of Rights and Freedoms. Quebec, still not happy, did not support the Prime Minister. In April of 1982, the amendments were signed off by Queen Elizabeth I and the constitution of Canada officially became patriated.

This Charter is a document that protects the interests of Canadians and provides a way to challenge perceived abuses of basic rights and freedoms through the judiciary system. Firstly, a right is the consequence of a duty placed on an individual or on the state by law or some higher authority[4]. In other words, a right is a legal, moral or social expectation that citizens are entitled to from the government, a “claim upon the state”[5] . Examples to underpin this range from the rights of non-smokers to the right of autistic children to government-funded therapy. Secondly, freedom is the ability to do something without constraints imposed by the State like the freedom of expression. Conclusively, the fact that the Charter refers to both rights and liberties is reflected in its full title.

The Charter guarantees fundamental freedoms like freedom of conscience and religion or freedom of association. In terms of rights, the Charter warrants democratic rights which cover the right to vote; mobility rights which guarantee to Canadian citizens and permanent residents the right to live and work anywhere in Canada (some provinces tried limiting these rights to guarantee that local residents would get available jobs first[6]); legal rights which range from the life, liberty and security of the person to the interdiction of cruel and unusual punishment, equality rights that ensure equal benefit and protection of the law without discrimination and language rights with section 23 which gives minority language education rights.

Another section on which a lot of emphasis has...
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