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Human Rights and the Charter

Wednesday, April 12, 2017
Photo: Marc Lostracci, CC BY 2.0

The cornerstone of human rights protection in Canada is the Canadian Charter of Rights and Freedoms. The Charter forms part of Canada’s Constitution and came into being on April 17, 1982, with the signature of the Constitution Act, 1982. Looking back 35 years, how did the Charter change the way human rights are protected in Canada?

Before the adoption of the Charter, the protection of human rights and fundamental freedoms in Canada was the responsibility of Parliament. Parliament took charge of adopting laws that protected human rights and Parliament could modify these laws at will. Canada inherited this principle of parliamentary supremacy from the British legal tradition, which places the legislative branch above all other government institutions, including the executive and judicial branches. Under this system, the courts cannot overrule laws enacted by Parliament and no Parliament can pass laws that future Parliaments cannot change. In other words, Parliament reigns supreme.

The Canadian Bill of Rights, enacted in 1960, reflected this principle of parliamentary supremacy. As a federal law that was not entrenched in the Constitution, Parliament could modify the Bill of Rights at its discretion. Moreover, the judiciary could not use the Bill of Rights to override other laws, which made the Bill of Rights ineffective in protecting human rights. These limitations prompted the call for the adoption of a bill of rights that could be entrenched in the Constitution.

The Canadian Charter of Rights and Freedoms, embedded in the Constitution Act, 1982, provided a solution. However, the Charter did much more than entrench fundamental freedoms and democratic rights in Canada’s Constitution. The Charter reflected Prime Minister Pierre Elliott Trudeau’s vision for a united nation based on equal rights for all Canadians. As such, the Charter explicitly prohibits discrimination on the basis of colour, religion, sex, age, and physical or mental disability. It affirms linguistic rights and pre-existing Indigenous and treaty rights. Since its enactment, the Charter has been interpreted in different ways, allowing the scope of its protections to evolve. For example, the courts have interpreted the Charter to protect people from discrimination based on sexual orientation, marital status and off-reserve Aboriginal status.

The Charter’s enactment 35 years ago also meant a transfer of authority of Canada’s highest law from Great Britain to Canada. This transfer was the subject of intense debate. Some provinces were concerned that the federal government was acting unilaterally. Ultimately, the agreement was concluded without Quebec’s participation. Subsequent efforts to secure the support of all provinces, through the Meech Lake Accord and the Charlottetown Accord, also failed.

The Canadian Constitution is the supreme law of the nation. Section 52 of the Constitution Act, 1982 states that no other law can go against the rights that it protects. This same section gives the courts authority to invalidate legislation that is found to be contrary to constitutional principles. The adoption of the Charter means that Canadians rely on judges to interpret and enforce the human rights contained within the Charter, including striking down unconstitutional laws that violate the rights and freedoms that the Charter protects. While the Charter remains controversial for some, some studies suggest that it has since become one of the strongest symbols of Canadian nationhood.

Learn more about the Canadian Charter of Rights and Freedoms in the Museum’s Protecting Rights in Canada gallery on Level 3.