The Canadian Charter of Rights and Freedoms - Assignment Example

The Canadian Charter of Rights and Freedoms The Canadian Charter of Rights and Freedoms was included in the Constitutional Act of 1982 and is a symbol of the Canadian respect for basic human values (Chretien, 1999). The scope of the provisions in the Charter are wide ranging enough, and also incorporate the added element of flexibility required to accommodate rights that may not have been specifically laid out in the Charter; therefore it adequately protects civil rights. 2. As articulated by Jean Chretien, Minister of Justice in 1982, “the only way to provide equal protection to everyone is to enshrine those basic rights and freedoms in the Constitution.” (Covert, 1993). However, per Section 1 of the Charter, these rights are subject to certain limitations that may be prescribed under the Law ensure that democracy is preserved (Roach, 2005). Moreover, as laid out under Section 33 of the Charter, legislatures will be accorded the privilege of overriding the rights embodied in the Charter in some instances, notwithstanding the protection accorded to them (Roach, 2005). This has fuelled the controversy between Courts and legislatures over the treatment of rights and there have been allegations that the provisions of the Charter do not adequately protect individual rights. 3. Are the civil rights of Canadians being restricted in the Charter? At the outset, it must be stated that the provision of absolute civil rights is not a realistic goal. In a country that is not under dictatorial rule, it is sometimes necessary that certain individual civil rights be curtailed or restricted to preserve and protect the democratic framework. Therefore the restrictions that exist under Sections 1 and 33 are perfectly reasonable and necessary to protect freedom and democracy of the many. There are also specific examples that may be cited to demonstrate how the Charter does provide for flexibility in application. One controversial area where the protection offered by the Charter has been claimed to be inadequate has to do with aboriginal languages, vital to the preservation of aboriginal culture. The provisions of the Charter recognize only English and French as the official languages of the country, used in Parliament. But this cannot immediately be construed as a discriminatory measure against aboriginal languages. Section 22 of the Charter clarifies that nothing in the Charter is to be construed as limiting or diminishing the legal and customary privileges associated with other languages. The political rights associated with the use of a language by virtue of statute or custom are to be preserved. Section 22 of the Charter also extends to government and political rights (Tremblay, 1982), thereby rendering Aboriginal languages inclusive within the scope of the rights and freedoms offered within the Canadian Charter. According to Peter Hogg, the rights provided through the exercise of political rights under Article 22 of the Charter can also be applied within a specific area or territory, so that aboriginal languages can in fact be spoken within the legislatures of particular territories within Canada. Some argue that the usage of only English and French in the Canadian Parliament undermines the use of the aboriginal languages which may become extinct through non usage and therefore equality provisions in the Charter are inadequate. The reality however, is that the Charter does not limit usage of any language and political rights associated with language use, arising by virtue of custom or statute are to be preserved. Since Article 22 does include the scope to invoke rights under the Charter for political use of all languages, therefore the Charter cannot be construed to be discriminatory in its requirement that only English and French be used as the Parliamentary languages. Another instance of application of the principles of the Charter in the aboriginal context arises in their differentiated citizenship claims, which defy the concept of pan-Canadian belonging and the exact delineation of Charter rights. However, as Herbert (2004) points out, the application of the Charter principles have resulted in citizenship rights being extended even to non citizens in some instances, such as refugee claimants post 9/11. Therefore, the contention that the Charter attempts to allocate rights on a prejudicial basis, denying or limiting them in the case of minorities or aboriginals, does not appear to have much merit when considered against the actual realities. While legislative outcomes in individual cases may not favor minorities or aboriginals in some cases, this does not automatically imply that Charter protection is inadequate, rather the circumstances of individuals cases could play a role in determining outcomes. A further controversial aspect of the Charter is Article 10 which includes a provision for habeas corpus in Section 10 (c) that has been deemed to be violative of individual freedoms - restricting them through its limited scope of application (www.canlii.org). A habeas corpus may be used to determine the validity of a detention in the event an individual has been unfairly detained by the police or other authority, however it becomes inapplicable in short time frames, and this aspect has generated criticism. However, a detention by the police and the lack of time for a habeas corpus does not necessarily mean that individual freedoms are being restricted in any way. It is only when a police officer forces an individual to comply with authority against his or her will that the question of whether or not individual rights are violated arises. For example, in the case of R v Therens (1985 Can LII 29 (SCC), a detention accomplished with the voluntary acquiescence of the individual concerned was not deemed to infringe the individual’s rights in any way, since there was no physical threat or any kind of intimidation that was applied. Therefore, when detention is accomplished voluntarily and a habeas corpus becomes unnecessary, it does not mean that the individual’s rights are being infringed and that the Charter does not adequately guarantee the freedoms available to individual citizens. In fact, the existence of the habeas corpus itself is a positive measure. Lastly, Section 26 of the Charter of Rights has made adequate provision for any rights that are not covered fully within its other sections. This section reads as follows: “The guarantee in this Charter, of certain rights, shall not be construed to deny or disparage others retained by the people.” (en.wikipedia.org) Clearly implicit within these words outlined above is the proviso that any and all rights that are not covered under the scope of other sections of the Charter are not necessarily accorded the status of “denied”. Therefore since such rights are not denied, they will be equally as valid as those already enshrined within the Charter. Rights that can be enforced under the Constitution can only be determined by legislative codes and regulations that are in existence. However the Charter makes it clear through this particular section that there is no reason why individuals cannot utilize this proviso to also assert their rights and seek extension of Charter freedoms into legislative provisions. The existence of this section in the Charter is not a guarantee of enforcement of such rights, rather it serves as a reminder that such rights are not limited and can be enforced by seeking legislative measures to accomplish them. Hence, when examined against the argument that the Charter adequately provides for rights, it may be seen that this is indeed true, because the Charter does not limit any rights – in fact, any rights that are limited in its other sections are provided for under this section (26) by clearly stating that such rights may not be disparaged or denied. 4. Most arguments that allege inadequate protection of civil rights in the Charter raise the red flag of violation of rights of the aboriginals and the other minorities. But it may also be argued that while there could be individual aberrations of justice, this does not support the contention that the Charter is flawed in its entirety. The goal of the Charter is that of protecting individual freedoms and civil rights of all citizens and the Charter does not specifically restrict civil rights to any particular group of individuals or attempt to discriminate such groups. Rather, the provisions of the Charter such as Section 26, specifically include the clause that rights not specifically mentioned in the Charter are not denied or limited, therefore there is flexibility inherent in their application in accordance with changing times. Thus, when there is room within the Charter to contest any infringement of individual rights, then it cannot be said to inadequately provide for civil rights. Moreover, since it overrides Parliamentary mandates, it also ensures that the highest objectives of civil rights that are to be attained are not restricted or limited by Parliament and that full scope is allowed for their exercise by citizens. The restrictions spelt out under Sections 1 and 33 cannot detract from the adequate coverage for civil rights, since such restrictions are mandatory in the interest of preservation of the democracy. Unlimited individual rights is not a feasible objective and the lack of provision for unlimited individual rights is not an indication of inadequate coverage of civil rights. 5. Therefore, in addressing the question of whether civil rights are adequately protected by the Charter, no significant limitations can be identified. Civil rights cannot be absolute, some degree of curtailment is essential to protect rights of others in society. Hence limitations imposed by Sections 1 and 33 are justifiable, and individual aberrations and abuse in civil rights cannot be the basis upon which to denigrate the framework of the Charter itself. 6. The provisions of Section 22 and 26 of the Charter allow individuals to approach the Courts to ensure that any rights not covered are included through newly formulated legislative provisions. Therefore the Charter is flexible enough to accommodate changes and cannot be deemed to be inadequate. In conclusion, it may therefore be reiterated that civil rights cannot be absolute in a democratic society. Therefore, the goal of such a Charter must be the attainment of civil rights to the maximum extent feasible in a democratic society, such that the rights of others are not infringed. This goal has been achieved by the Charter as it stands today. . References: * Chretien, Jean, 1999. “Canadian foreign policy: Basic Human Rights” Vital speeches of the Da, 65(13), pp 389. New York, April 15, 1999. * Covert, James R, 1993. “Creating a professional standard of moral conduct for Canadian teachers: A work in progress.” Canadian Journal of Education, 18(4), pp 429. * Hogg, Peter, 1982. “Canada Act 1982 Annotated.” Toronto: The Caswell Company. * Tremblay, Andre, 1982. “The Language Rights” IN “The Canadian Charter of Rights and Freedoms: Commentary” (Tarnopolsky and Tarnopolsky edn) Toronto: The Caswell Company. * “Charter Decisions” Available online at: http://www.canlii.org/ca/com/chart/s-10-b.html * Roach, Kent, 2005. “Constitutional, Remedial and International Dialogues about Rights: The Canadian Experience.” Texas International law Journal, 40(3), pp 537. * “Section 26 of the Canadian Charter of Rights and Freedoms.” Wikipedia online encyclopedia. Available online at: http://en.wikipedia.org/wiki/Section_Twenty-six_of_the_Canadian_Charter_of_Rights_and_Freedoms Read More