Friday, 23 March 2012

So Far So Good... or maybe not.

The Canadian Charter of Rights and Freedoms is 30 years old in 2012.

In Canadian law, the “Charter” is the first 34 sections of the Constitution Act, 1982. Broadly speaking, the Charter is a bill of rights recognizing individual rights and limiting the authority of the federal and provincial governments.

For example, section 2 of the Charter guarantees that everyone has the fundamental freedoms of religion, expression, assembly, and association.

Section 7 contains another important rights guarantee. This section recognizes that everyone has a right to liberty constrained only by the demands of justice—presumably the liberty of criminals can be constrained.

There was good reason to be optimistic in 1982 when the Charter was new—various portions were drafted to protect individual freedoms by limiting government authority. But in the 30 years following, the courts in Canada have continually done the opposite. Instead of the Charter protecting individual freedoms from overreaching governments, it has been given a government-promoting interpretation that negatively impacts upon individual freedoms.

In an article prepared for the C2C Journal, Karen Selick and I outline four portions of the Charter that have been given this government-promoting interpretation. You can read the article online here.

Here is a brief outline of the article.
  • In the 1990 Canada v. Taylor decision, the Supreme Court of Canada (SCC) restricted the section 2(b) individual right to freedom of expression in order to preserve the hate speech provision in the Canadian Human Rights Act.
  • In the 1991 Lavigne v. Ontario Public Service Employees Union decision, the SCC held that the section 2(d) freedom of association does not prohibit the government from forcing individuals to associate.
  • In the 1988 R. v. Morgentaler decision, the SCC decided that the section 7 right to liberty grants individuals only a degree of autonomy when making decisions of fundamental personal importance, and that decisions of lesser significance could expect no constitutional protection.
  • In the 2003 R. v. Malmo-Levine decision, the SCC decided that the government is free punish individuals for actions that cause no one any harm, despite the section 7 guarantee of individual liberty.
For the full discussion on each of these issues, go to the C2C Journal’s website and read the entire article. I think you will be convinced that the first 30 years of the Charter’s existence have yielded mixed results.

This appeared in the Canadian Constitution Foundation's blog in February 2012.

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