The Charter @ 35 (May 1)

35 years ago, Queen Elizabeth signed the Canadian Charter of Rights and Freedoms into law along with the repatriation of the constitution. The Charter embodies key Canadian values of human rights, equality of women and men, bilingualism, multiculturalism Indigenous Rights and a fair justice system.
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On May 1st the Pearson Centre organized a celebration commemorating 35 years of the Canadian Charter of Rights and Freedoms. To mark this historic milestone the centre welcomed a panel of human right leaders to discuss their thoughts on the Charter’s evolution and the impact it has made over the last three decades.

Érik Labelle Eastaugh:
CazaSaikaley, SRL/LLP, a leading firm in advancing minority language rights. Érik was the moderator for the panel and led the discussion with the speakers.

Senator Marilou McPhedran:
Independent (MB); Founder of the Women’s Legal Education and Action Fund (LEAF), and activist for including gender equality in the Charter.

“It was about the kind of country that we wanted.”

When asked “What do you think are the highlights of the evolution of the Charter over the last 35 years?” Senator McPhedran answered that, for her, a very significant evolution was the participation of women throughout Government and from different political parties. They worked together across party lines to make crucial changes to components such as Section 15. These changes were made in order to make the section more inclusive, and to offer women a better chance in cases for equality, where in the past women had lost every single equality case that they had brought forward with the Bill of Rights. She herself, and others, felt that this was doubly important not only because it was necessary to support women and girls for generations to come, but also to change a system that forced men and boys to take part in the discrimination that that system had created.

Senator McPhedran, in response to MP Mendicino’s mention of the necessity of a dialogue, explained that it is in fact a trialogue, where the public often has to play a key role in pressuring governments and the courts to make a change. While it does not always live up to this ideal within the courts, the Canadian peoples’ vision and hope for the Charter is very powerful and inspiring.

Anthony Housefather:
(MP, Mount Royal, QC) Chair of the Standing Committee on Justice, House of Commons

“I believe it [The Charter] has changed the way we see ourselves as Canadians.”

Member of Parliament, Housefather expressed that everyone relates to the Charter in their own way, based on their own personal experiences. The Charter was in fact a significant reason why he became involved in politics in the first place. In his view the Charter has brought about great social change – namely in adding to our identities as Canadians; which is to say individuals who are entitled to certain indisputable rights and that lend us the ability to advocate for ourselves.
In his way, the future of the Charter will require an effective coordination between the public, the courts and Parliament. Important questions may also arise in regards to what to do when courts make decisions that appear to be uncalled for, or even to create law, and it will be crucial to work towards a balance.

Catherine McKenney:
Councillor, City of Ottawa and Ottawa’s first openly LGBTQ woman elected to City Council

“With my election 25% of women on City Council are openly gay, but there are only four of us.”

In light of the successes outlined by the previous two panelists, Councillor McKenney was asked if she would like to highlight anything particular as a significant success. After first reflecting on MP Housefather’s words regarding gay marriage, and how important this has been for allowing the family dynamic and trans rights

to evolve, Councillor McKenney sought to bring the discussion back to the ground level to issues faced within the city of Ottawa. Using the example of how women have reported being harassed by protestors when trying to receive services at a women’s reproductive health centre, Catherine outlined the dilemma this can create. On one hand it is necessary to ensure that women have access to the health services they need, but it is also vital to recognize the freedom of peaceful protest. The Councillor explained that this is an important conversation that needs to be had, and the Charter has allowed for this conversation to take place.
While responding to a question regarding what we could see in the future for the Charter, namely challenges that will arise, Catherine cited refugee rights and the discussions that will need to take place regarding what our responsibilities are to those seeking sanctuary.

Marco Mendicino:
(MP for Eglinton-Lawrence, ON) Parliamentary Secretary to the Minister of Justice and Attorney General

“If nothing else I think what the Charter really reflects is those questions that we as a species have been asking for as long as we can remember: Who are we? What are the values that we live by? And which are the organizing principles by which we will arrange our society? So I am grateful for that. I think we all should be.”

When asked to provide his view on the Charter from the perspective of a former prosecutor, Member of Parliament Mendicino reflected on Senator McPhedran’s statement about the bipartisan collaboration involved in drafting and reworking the document. He expressed that Canada is a special case because the Charter was created through peaceful cooperation which is in itself a reflection of what it stands for. From his perspective, MP Mendicino explained that it is “very much a balancing exercise” and the Charter requires the courts and Parliament to coordinate in an effective and creative manner. He used the Jordan case of an example of this. That being said, the Charter is very much a dynamic creation that grows and is changing, dependant on the policy issues of the time.
For the future of the Charter MP Mendicino expressed a hope that reconciliation with the Indigenous peoples of Canada would come to fruition and believed that Indigenous Rights would be a focus.

Report written by Jillian Hawley: currently a student at the University of Ottawa and completing an Honours Bachelor in Conflict Studies and Human Rights.

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See Comments below from the Prime Minister and Justice Minister

Here are some views about the record of the Charter.

Link to an article in iPolitics about the Charter at 35

https://ipolitics.ca/2017/04/17/the-charter-at-35-there-are-winners-and-losers-in-the-fight-for-rights/

Below is an article by CBC journalist Daniel Schwatrz from five years ago – the Charter at 30 (following statements by the PM and Minister)

Here is a link to an article by Madame Justice Beverly McLaughlin when the Charter turned 25.

http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1245&context=ohlj

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Statement by the Prime Minister of Canada on the 35th anniversary of the Canadian Charter of Rights and Freedoms (English version follows French)

Déclaration du premier ministre du Canada à l’occasion du 35e anniversaire de la Charte canadienne des droits et libertés

17 avril 2017
Le premier ministre Justin Trudeau a fait aujourd’hui la déclaration suivante pour souligner le 35e anniversaire de la Charte canadienne des droits et libertés :

« Au cours des 35 dernières années, la Charte nous a aidés à bâtir un pays où des gens provenant de partout dans le monde peuvent vivre ensemble dans l’égalité et créer des opportunités les uns pour les autres.

« La Charte protège les droits et libertés qui sont à la base de notre identité canadienne. Elle nous permet de nous exprimer en tant qu’individus et de célébrer nos différences, tout en nous rapprochant en tant que Canadiens.

« Cette année, nous soulignons également le 35e anniversaire de l’article 35 de la Loi constitutionnelle de 1982, qui reconnaît et affirme les droits ancestraux, et ceux issus de traités, des peuples autochtones du Canada. Aucune relation n’est plus importante pour notre gouvernement que celle que nous entretenons avec les Autochtones. Nous sommes déterminés à mettre en place une relation renouvelée de nation à nation, d’Inuits à Couronne et de gouvernement à gouvernement, qui repose sur la reconnaissance des droits, le respect, la collaboration et le partenariat.

« La lettre et l’esprit de la Charte sont au cœur de la réussite du Canada et devraient tous nous inspirer dans nos efforts en vue de créer une société plus juste, plus égalitaire, et plus compatissante.

« Aujourd’hui, j’aimerais rappeler aux Canadiens que nous n’avons pas plus grand devoir que celui de veiller aux libertés des uns et des autres. Les mots enchâssés dans la Charte représentent nos droits, nos libertés et surtout notre responsabilité collective. »

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April 17, 2017
The Prime Minister, Justin Trudeau, today issued the following statement on the 35th anniversary of the Canadian Charter of Rights and Freedoms:

“For the past 35 years, the Charter has helped build a country where people from all over the world can come together as equals and create opportunities for one another.

“The Charter protects the rights and freedoms that are essential to our identity as Canadians. It allows us to express ourselves as individuals and to celebrate our differences, while bringing us closer as a country.

“This year, we also mark the 35th anniversary of Section 35 of the Constitution Act, 1982, which recognizes and affirms Aboriginal and treaty rights. There is no relationship more important to our government than the one with Indigenous Peoples. We are committed to a renewed nation-to-nation, Inuit-to-Crown, and government-to-government relationship based on recognition of rights, respect, co-operation, and partnership.

“The spirit and substance of the Charter are at the heart of Canada’s success, and should inspire us all as we work toward a fairer, more just and compassionate society.

“Today, I remind Canadians that we have no task greater than to stand on guard for one another’s liberties. The words enshrined in the Charter are our rights, freedoms, and – above all – our collective responsibility.”
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Déclaration de la ministre Wilson-Raybould sur le 35e anniversaire de la Charte des droits et libertés

Déclarations

De Ministère de la Justice Canada

Le 17 avril 2017 – Ottawa (Ontario) – Ministère de la Justice Canada

L’honorable Jody Wilson-Raybould, ministre de la Justice et procureur général du Canada, a fait aujourd’hui la déclaration suivante :

« Aujourd’hui, je me joins à toutes les Canadiennes et à tous les Canadiens pour célébrer le 35e anniversaire de la Charte canadienne des droits et libertés. Le 17 avril 1982 a été un moment déterminant de l’histoire de notre pays, alors que le Canada a pris la mesure audacieuse d’adopter dans sa Constitution un document protégeant les droits.

La Charte a été un puissant agent pour le progrès social et la réalisation d’une société plus inclusive et compatissante. La Charte exige que nous soyons tous traités de manière égale selon la loi, peu importe notre sexe, notre race, notre origine nationale ou ethnique, la couleur de notre peau, la religion que nous choisissons de pratiquer ou de ne pas pratiquer, notre âge, nos capacités mentales ou physiques, ou notre orientation sexuelle. La Charte protège et relie entre eux tous les Canadiens, d’un bout à l’autre du pays. Elle est devenue un document reconnu internationalement.

Le 13 mars, le ministère de la Justice a lancé un compte à rebours en vue de l’événement d’aujourd’hui. Au cours des 35 derniers jours, les Canadiennes et les Canadiens de partout au pays se sont joints à nos célébrations, se sont familiarisés avec la Charte, ont discuté de sa signification à leurs yeux et ont pris part à des activités locales.

Notre gouvernement manifeste le meilleur engagement possible en vue de respecter la Charte. Nous étions fiers d’annoncer le rétablissement d’un Programme de contestation judiciaire modernisé et élargi, ce qui permettra de clarifier et de renforcer les droits constitutionnels des Canadiens en offrant de l’aide financière aux groupes qui souhaitent amener des causes dont la solution ferait jurisprudence. Le nouveau programme élargira la portée des droits admissibles aux nouvelles sections de la Charte et modernisera la structure de gouvernance pour assurer l’indépendance, la transparence, la reddition de compte et l’impartialité des décisions rendues.

Une des initiatives dont je suis la plus fière à titre de ministre de la Justice est celle des « Déclarations relatives à la Charte ». À chaque projet de loi que j’ai présenté à la Chambre, j’ai joint une Déclaration relative à la Charte, fournissant aux parlementaires et au public un complément d’information concernant les effets des lois proposées sur les droits et libertés garantis par la Charte. Ceci permet de s’assurer que la Charte demeure la préoccupation première lors de l’élaboration des initiatives législatives et pendant le processus parlementaire.

Aujourd’hui, nous célébrons également le 35e anniversaire de la protection des droits constitutionnels des peuples autochtones du Canada. L’article 35 de la Loi constitutionnelle de 1982 reconnaît et confirme les droits ancestraux et les droits issus de traités des peuples autochtones du Canada. Notre gouvernement s’est engagé à renouveler la relation de nation à nation avec les peuples autochtones basée sur la reconnaissance des droits de la personne, le respect, la coopération et le partenariat.

La Charte et l’article 35 sont intégrés non seulement dans nos livres d’histoire et nos lois, mais aussi dans le tissu même de notre société. Au moment de célébrer leur anniversaire et le 150e anniversaire du Canada, accueillons nos droits constitutionnels et reconnaissons leur rôle continu pour aider à façonner le Canada de demain. »

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Minister Wilson-Raybould Issues Statement on 35th Anniversary of Charter of Rights and Freedoms

Statements

From Department of Justice Canada

April 17, 2017 – Ottawa, Ontario – Department of Justice

The Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, today issued the following statement:

Today, I join Canadians in celebrating the 35th anniversary of the Canadian Charter of Rights and Freedoms. April 17, 1982 marked a defining moment in our country’s history, when Canada took the bold step of adopting a rights-protecting document as part of our Constitution.

The Charter has been a powerful force for social progress and the realization of a more inclusive and compassionate society. Regardless of our sex, our race, our national or ethnic origin, the colour of our skin, the faith we choose or choose not to practice, our age, our mental and physical ability or our sexual orientation, the Charter requires that we all be treated equally under the law. The Charter both protects and connects Canadians from coast-to-coast-to-coast. It has become an internationally-renowned document.

On March 13, the Department of Justice launched a countdown to today. Over the past 35 days, Canadians from across the country have embraced our celebration and learned about the Charter, shared what it means to them and taken part in local celebratory activities.

Our Government is demonstrating the greatest possible commitment to respecting the Charter. We were proud to announce the reinstatement of a modernized and expanded Court Challenges Program, which will clarify and strengthen the constitutional rights of Canadians by providing financial aid to groups who seek to bring test cases. The new program will expand the scope of eligible rights to new sections of the Charter, and will have a modernized governance structure to ensure independence, transparency, accountability and impartial funding decisions.

One of the initiatives I am most proud of as Minister of Justice is the use of “Charter Statements.” For each bill I have introduced in the House, I have tabled an accompanying Charter Statement, which provides Parliamentarians and the public with more information about how our proposed laws engage Charter-protected rights and freedoms. This ensures that the Charter remains top of mind in the development of legislative initiatives and during the parliamentary process.

Today, we also celebrate the 35th anniversary of the protection of constitutional rights for Canada’s Indigenous peoples. Section 35 of the Constitution Act, 1982 recognizes and affirms the Aboriginal and treaty rights of the Aboriginal peoples of Canada. Our Government is committed to a renewed, nation-to-nation relationship with Indigenous peoples based on recognition of rights, respect, co-operation, and partnership.

The Charter and section 35 are woven into history books and laws, and into the very fabric of our society. As we celebrate their anniversary and Canada 150, let us embrace our constitutional rights and recognize their continued role to helping to shape the Canada of tomorrow.

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6 BIG CHANGES THE CHARTER OF RIGHTS HAS BROUGHT

By Daniel Schwartz , CBC News Posted: Apr 17, 2012 4:41 PM ET| Last Updated: Apr 17, 2012 7:56 PM ET

The 30th anniversary of the Canadian Charter of Rights and Freedoms provides an opportunity to look back and identify some of the big social changes that have flowed from this document.

Here we look at six big changes the charter has brought about — to police powers, women’s and reproductive rights, recognition for gay and lesbian relationships, linguistic and aboriginal rights, and to what is sometimes called judicial activism. They are not ranked in any particular order.

Over the past 30 years, particularly since the charter’s equality rights section came into force, the courts have overturned many laws that they felt went against the charter. But it is also the case that governments have won more often than they have lost on charter challenges before the Supreme Court.

In addition to consulting published material and video and audio for this story, CBC News interviewed:
■Nathalie Des Rosiers, general counsel for Canadian Civil Liberties Association and a law professor at the University of Ottawa, previously a dean and former president of the Law Commission of Canada. (Dr. Des Rosiers was elected an an MPP in Ontario in the fall of 2016)
■Marilou McPhedran, principal of the University of Winnipeg Global College, and former chief commissioner of the Saskatchewan Human Rights Commission and founder of the Women’s Legal Education and Action Fund (LEAF). (Ms McPhedron is now an Independent Senator.)
■Rainer Knopff, a political science professor at the University of Calgary and author or co-author of three books on the charter, including, in 2008, The Court and the Charter: Leading Cases.

1) Limiting police powers

One of the more significant changes over the past 30 years has been court-enforced legal safeguards and accountability for policing, Des Rosiers observes.

There were a number of charter cases that codified these changes, including the Oakes case in 1986 in which the Supreme Court overturned a law that had required the accused to disprove a presumption of guilt, in this case for possession of narcotics for the purpose of trafficking. The defendant testified that he was holding the drugs for his own use, to manage pain from a workplace accident.

On the charter’s 25th anniversary, leading charter experts voted the Oakes case as the case that has had “the greatest impact on the charter’s interpretation and evolution” because it’s a symbol of the charter’s goal of maintaining balance between legislatures and courts and “between the rights of individuals and the demands of democratic society.”

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Nathalie Des Rosiers of the Canadian Civil Liberties Association argues that one way the charter has led to significant change is by requiring more accountability for policing and more legal safeguards. (David Smiley/courtesy CCLA)

They also found that Oakes was the most cited charter decision.

In its latest decision, on April 13, the Supreme Court struck down a law that allows police to tap telephones without a warrant in what police call an emergency, citing the charter, and asked Parliament to rewrite its wiretap legislation to provide for suitable accountability.

Because of the charter there is more protection for privacy and more disclosure obligations between the Crown and the defence, As well, says Des Rosiers, “good policing practices have now moved from being good to mandatory to have.”

Roy McMurtry, Ontario’s attorney general from 1975 to 1985, and later the province’s chief justice, said the charter “has done a lot to strengthen the individual rights of the accused.”

McMurtry, who helped draft the Constitution during the patriation battles of 1981-82, was speaking on CBC Radio’s The Current.

2) Women’s reproductive rights

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Dr. Henry Morgentaler speaks at press conference in Toronto Jan. 28, 1998 to mark the ten-year anniversary of the Supreme Court that ruled Canada’s abortion laws were unconstitutional. (John Lehmann/Canadian Press)

The key decision in this instance was the 1988 Morgentaler case, in which the Supreme Court ruled that the Criminal Code sections on abortion were unconstitutional.

By the time of that ruling there was only one woman on the Supreme Court — Bertha Wilson, the first woman to be appointed.

Siding with the majority, “she anchors her decision in what prior to this case had been seen as almost exclusively an area of criminal law for the accused, section 7, liberty,” McPhedran points out.

“The right to liberty contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives,” Wilson wrote in her decision.

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Lawyer and rights activist Marilou McPhedran said the Supreme Court’s decision in the 1988 Morgentaler case ‘really captures the reality of women’s lives. (Courtesy Marilou McPhedran)

Knopff notes that the Supreme Court “took a stand that is much more modest and moderate than what the Morgentaler decision is portrayed as, rhetorically.”

The court left the door open for Parliament to rewrite the legislation but that has not happened and abortion has effectively been legal in Canada since 1988.

For McPhedran, the Morgentaler decision “really captures the reality of women’s daily lives, and it focuses on the difference between a theory of a right and living a right.”

3) Recognition of the LGBT community

Through a series of decisions the courts have recognized rights of lesbian, gay, bisexual and transgender Canadians, despite the fact that sexual orientation is not specifically mentioned in the charter itself.

In the 1998 Vriend decision, the court read sexual orientation into Alberta’s human rights legislation, confirming earlier decisions prohibiting discrimination on those grounds.

That decision led the Alberta government to the brink of invoking the notwithstanding clause, but in the end it shied away.

From Vriend, decisions on pensions and the marital rights of same-sex cohabiters, followed by a reference to the Supreme Court on same-sex marriage and the constitutionality of the Civil Marriage Act extended rights and recognition to the LGBT community.

Des Rosiers said that through its combination of litigation and activism, this was “a community that did it right.”

4) Linguistic rights for francophones outside Quebec

Through a series of provincial and Supreme Court decisions, the charter gave francophones outside Quebec access to French schools, school boards and even hospitals. Canada now has a generation called “section 23 kids” who were educated in these schools, where numbers warranted.

Des Rosiers considers those decisions to have been among the most important to have been given effect by the charter but she also notes that “language politics in Quebec haven’t changed that much” by comparison. The Quebec government famously employed the charter’s notwithstanding clause to override a Supreme Court decision on its main language law, Bill 101, in 1989. Some years later, however, it rewrote its language laws to comply with the top court’s ruling.

Also, an amendment (section 16.1) to the charter, one of just two, specifically about New Brunswick, helped give “a certain sense of affirmation about the Acadian community,” Des Rosiers notes.

5) Strengthened aboriginal rights

The charter’s recognition of Aboriginal Peoples “sent a very important message,” Renée Dupuis, the former chief commissioner of the Indian Specific Claims Commission, told CBC News last year.

The other amendment to the Charter, to section 25, was on aboriginal land claims.

The charter has imposed on governments a duty to consult aboriginal peoples when resource development and other government changes affect them unduly. It does not give native groups an absolute veto on these changes but it does ensure they will be able to participate in the process.

In the 1990 Sparrow decision, the Supreme Court affirmed that certain historic aboriginal rights, such as fishing, require protection by federal and, in some cases, provincial governments as part of an ongoing fiduciary obligation towards native peoples.

In Des Rosiers’ view, the charter “has created a change in the negotiating power of the aboriginal community.”

6) Judicial activism

For Rainer Knopff, the biggest change, institutionally, is that the charter “amounts to a significant transfer of policy making to the courts,” especially in an area that could be described as “morality issues.”

“The charter has meant that the courts have a major influence on those things in a way they wouldn’t have previously,” he says.

McPhedran also said that the charter has had a big impact on judicial activism, although she noted that the practice is not new.

There was the U.S. Supreme Court’s overturning of parts of the New Deal in the 1930s and in Canada there was Roncarelli v. Duplessis in 1959.

In that famous case the Supreme Court ruled that no public official is above the law, specifically the premier of Quebec at the time, Maurice Duplessis, who had revoked Frank Roncarelli’s liquor licence because he was financially helping his fellow Jehovah’s Witnesses who had been arrested for handing out religious literature.

Des Rosiers argues that Canadian legislatures do not have less power than before the charter, that they continue to exercise wide-ranging authority and can always use the notwithstanding clause (which has to be renewed every five years after it is employed) to circumvent most court decisions.

What has changed, Des Rosiers said, is that the charter forces governments to justify all legislation in light of human rights.

While noting that before the charter there was concern on both the left and the right about judicial activism, McPhedran observed, “the so-called ‘anti-judicial activism forces’ in this country, many of whom are now senior advisors to our federal government, have been brilliantly successful in redefining what it means to be a so-called judicial activist.” She argues that they have had “a real impact on the way in which judges write and the extent to which they will reach.”

The charter’s impact abroad could be added as a seventh big change, because of the global impact. See our story, Charter of Rights turns Canada into a ‘constitutional’ trendsetter.

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