Canadian Charter of Rights and Freedoms

[nw843x]

My local MLA has said that the Canadian Charter of Rights and Freedoms is no longer needed.

"I just don't think it's a good document whatsoever myself," Pimm said in the legislature. For 99 per cent of the people out there, that document doesn't even need to exist, first off. It's only about one per cent or two per cent of the people that it's even developed for, and it's to keep the lawyers and the judges and everybody working to support the system."

Thankfully it is just this one idiot who believes that the Charter should be scrapped. I mean it is not like the Charter really defines the type of country Canada really is or anything.

quote from Victoria Times Colonist :

What the Charter does is set out the basic rights of Canadians. We can say what we think and follow our religious beliefs without government intrusion. Basic principles of justice have to be followed if the state wants to interfere with our lives.

 

[Gord_in_Toronto]

What a curious thing to say. And even more curious to believe.

 

[FlamingMoe]

Given the activities of the Canadian Human Rights Council, one could argue the charter isn't needed because it's ineffective at keeping the government from curtailing the rights and freedoms such a charter should exist to ensure.

 

[Praktik]

Well, judging the charter on that narrow basis would be nearly as foolish as the viewpoint in the OP.

Read it again. It's fairly wide ranging, even if you disagree with the ills of the Canadian Human Rights Commission, the charter applies to much more than that.

Though there are some protections in common law precedent, the charter codified a series of rights much more firmly.

It was only recently, for example, that prison guards in the UK were forbidden from reading communications in and out of prisons to prisoners - sometimes this included communications with lawyers. A charter-less environment is not one I'd wanna go back to - even if worse things could happen.

 

[INRM]

Is the Canadian Charter of Rights and Freedoms equivalent to the US Constitution?

 

[Roma]

Wouldn't the Canadian Charter of Rights and Freedoms support the gender equality rights of Women's Ski Jumping in the upcoming Winter Olympics in Canada ?

Guess not since the men can have ski jumping at this year's olympics but not the women.

So what is this, just a snowy Saudi Arabia ?

 

[pipelineaudio]

Well, judging the charter on that narrow basis would be nearly as foolish as the viewpoint in the OP.

Read it again. It's fairly wide ranging, even if you disagree with the ills of the Canadian Human Rights Commission, the charter applies to much more than that.

I think his point was, if it cant even keep those kangaroo courts from harassing people, how can it be expected to do anything broader?

 

[D'rok]

Wouldn't the Canadian Charter of Rights and Freedoms support the gender equality rights of Women's Ski Jumping in the upcoming Winter Olympics in Canada ?

Guess not since the men can have ski jumping at this year's olympics but not the women.

So what is this, just a snowy Saudi Arabia ?

The Charter doesn't apply to non-government action. The IOC is not an entity of any level of government in Canada.

 

[Wolfman]

Wouldn't the Canadian Charter of Rights and Freedoms support the gender equality rights of Women's Ski Jumping in the upcoming Winter Olympics in Canada ?

Guess not since the men can have ski jumping at this year's olympics but not the women.

So what is this, just a snowy Saudi Arabia ?

Personally, I think that there should be women's ski jumping. The IOC's stated reason for not including it is that it doesn't meet Olympic criteria -- ie. it is not practiced by enough people in enough countries to make it a legitimate Olympic sport. And I've got to admit, from their perspective, it would be rather problematic having an event in which only a few countries were able to compete, because most of them didn't have qualified athletes.

I wish it had been included...but rather than bitching and moaning about the Charter of Rights, I'd suggest that those who support this should be spending their time to get out there and make the sport more popular! Get more women in more countries involved! Host more international competitions, with real prizes, to encourage more women to get involved.

If that were done, then the IOC would no longer have a reason not to include it.

 

[Puppycow]

Why ski jumping in particular? Ice hockey is also a winter olympic sport. Is there a women's event in ice hockey?

What about a men's event in syncronized swimming?

 

[Praktik]

Why ski jumping in particular? Ice hockey is also a winter olympic sport. Is there a women's event in ice hockey?

What about a men's event in syncronized swimming?

These trailblazers are already on it.

Well... that was some decades ago - but when it happens these are the guys who will be cited as the pioneers.

 

[Segnosaur]

Why ski jumping in particular? Ice hockey is also a winter olympic sport. Is there a women's event in ice hockey?

Actually, yes there is a Women's Ice Hockey tournament at the Olympics. (Usually the 2 dominant teams are the Canadians and the Americans.)

http://en.wikipedia.org/wiki/Ice_hockey_at_the_Olympic_Games#Future_tournaments

 

[Gord_in_Toronto]

Why ski jumping in particular? Ice hockey is also a winter olympic sport. Is there a women's event in ice hockey?

What about a men's event in syncronized swimming?

Your first question -- Yes
www.vancouver2010.com/olympic-hockey/

To your second -- No
Not enough interest.

 

[Segnosaur]

Well, judging the charter on that narrow basis would be nearly as foolish as the viewpoint in the OP.

Read it again. It's fairly wide ranging, even if you disagree with the ills of the Canadian Human Rights Commission, the charter applies to much more than that.

Though there are some protections in common law precedent, the charter codified a series of rights much more firmly.

Some of us believe the problems with the charter go a lot further than just the issues with the Human Rights Commissions.

I've complained about the charter before. I can think of a lot of problems with it. For example:

- At the beginning, it acknowledges the 'supremacy of god'. Now, that particular phrase doesn't hold any sort of legal weight. However, as an atheist I'm a little annoyed that it contains that phrase.

- The charter contains no protection for property rights

- The charter contains the 'notwithstanding' clause, which allows governments to pass laws that violate certain rights if they choose

- Contains provisions for rights to be overridden if its in the 'public good'. (That's basically how the Human Rights Commissions and Hate Speech Laws work... technically, its a violation of the right to free speech, but the constitution allows such violations.)

It was only recently, for example, that prison guards in the UK were forbidden from reading communications in and out of prisons to prisoners - sometimes this included communications with lawyers. A charter-less environment is not one I'd wanna go back to - even if worse things could happen.

Just out of curiosity, where is the phrase in the charter and/or constitution that guarantees private communication between prisoners and lawyers? I know its got sections relating to speedy trials, having access to lawyers, etc. but I can't find anything about private communications. (Might be there, but I might have overlooked it.)

Of course, if such a provision isn't there, then the charter itself isn't of much use in protecting the right to private communication, is it.

 

[Praktik]

Ya not sure where and not sure I feel like looking it up but I expect it would be included under the right to a fair trial and unreasonable search and seizure.

The point is that the opening of mail only became an issue once the EU charter came into force and it was litigated on that basis since there was nothing in common law to prevent it.

The charter ain't perfect (see NAPE case), the only reason we have a notwithstanding clause is because we still have Quebec - yet another reason to say "see ya!" when they get back on the separation bandwagon!


I'd still prefer to have it and have the kinks worked out over the years with more charter jurisprudence than to not have one.

 

[D'rok]

Some of us believe the problems with the charter go a lot further than just the issues with the Human Rights Commissions.

I've complained about the charter before. I can think of a lot of problems with it. For example:

- At the beginning, it acknowledges the 'supremacy of god'. Now, that particular phrase doesn't hold any sort of legal weight. However, as an atheist I'm a little annoyed that it contains that phrase.

I don't like that either, but it is unlikely to ever affect interpretation of the Charter.

- The charter contains no protection for property rights

This is a complex question and was hotly debated when the Charter was being drafted. Basically, there are two good reasons for not explicitly including private property rights:

1. Aboriginal Rights - Aboriginal land claims do not fit into the liberal "bill of rights" framework, nor are they compatible with the standard Locke-liberal notion of private property (control over traditional/ancestral territory vs. outright ownership). Aboriginal peoples (mostly) never surrendered their sovereignty to the Crown and the treaties that pre-date confederation are nation to nation agreements that acknowledge this. Entrenching liberal property rights into the Charter would further disenfranchise First Nations peoples.

2. Property is arguably a second-order right that flows from other first-order rights (like s. 7 liberty rights and s. 15 equality rights). Libertarians would scream blue murder at this idea, but it has traction in the Canadian zeitgeist. We've always had communitarian notions mixed in with our liberalism.

Also, property and civil rights are provincial matters. Provincial legislation and the common law already offer significant protection for private property.

- The charter contains the 'notwithstanding' clause, which allows governments to pass laws that violate certain rights if they choose

Has almost never been used and is likely politically impossible to use. Also, it was an important compromise at the time of drafting because it injects some degree of Parliamentary Supremacy (which was our tradition of governance before the Charter) into our constitutional order. Parliament is made up of our elected representatives, after all. In a democracy, shouldn't the final word go to the legislature, not the judiciary? (That's how the argument goes at least).

- Contains provisions for rights to be overridden if its in the 'public good'.

This is simply an explicit acknowledgment of what de facto happens everywhere bills of rights exist. All governments have to abrogate rights on a regular basis. How could we have prisons otherwise? How could we be arrested? How could we be taxed? The list is endless. The provisions in the Charter are actually a check on this kind of activity, because the tests that the govt has to meet before it can abrogate a right are clearly laid out and they are reasonable and quite stringent. In the USA, where no such provisions exist, the Courts have had to create them.

(That's basically how the Human Rights Commissions and Hate Speech Laws work... technically, its a violation of the right to free speech, but the constitution allows such violations.)

It's important to remember that Human Rights Commissions exist to field private sector discrimination complaints. In other words, the Charter does not directly apply because, when a commission hears a complaint, the alleged rights violation has occurred between two private individuals or entities, not between a citizen or group of citizens and the government. The Charter is engaged on a meta-level regarding the Provincial Human Rights Acts by which the HRCs are empowered. Those Acts are open to Charter challenges (remember Vriend?)

I began life as a Charter sceptic, and I still am a little bit, but I've more or less come around after actually studying Charter jurisprudence. We're better off with it, warts and all. It really does constrain what the government can and can't do - constraints that were not properly in force pre-Charter.

 

[D'rok]

I'd still prefer to have it and have the kinks worked out over the years with more charter jurisprudence than to not have one.

Exactly!

 

[Segnosaur]

On guaranteed lawyer-client privacy...

Ya not sure where and not sure I feel like looking it up but I expect it would be included under the right to a fair trial and unreasonable search and seizure.

Well, I'll wait for confirmation. Until then, I'll be on the fence. (Like I said, quite possible that I overlooked something, but I'd still like to see proof.)

The point is that the opening of mail only became an issue once the EU charter came into force and it was litigated on that basis since there was nothing in common law to prevent it.

But that doesn't prove the Canadian charter is any good... It just that the rights under UK law were less than that of the EU. Maybe Canada would have been better off if we had adopted the EU charter rather than making our own...

The charter ain't perfect (see NAPE case), the only reason we have a notwithstanding clause is because we still have Quebec - yet another reason to say "see ya!" when they get back on the separation bandwagon!

Actually, I thought it was actually the western premiers who originally wanted the notwithstanding clause (perhaps worried that they'd have a bunch of laws that would need to be unexpectedly rewritten once the charter came into effect.)

Of course, to me, the reason its in there is irrelevant. I would have preferred they come up with a flawless charter, and if they couldn't, then drop the issue (rather than pass a half-ass charter with incomplete protections).

I'd still prefer to have it and have the kinks worked out over the years with more charter jurisprudence than to not have one.

Problem is, once its already in place, it can become a major hassle to try to work out the kinks. (And remember, even before we had our own charter, its not like people were rounded up and executed in the middle of the night... even if you are right about the whole 'Lawyer-criminal privacy" issue, most of our freedoms were still pretty secure.

 

[Praktik]

The whole example of the UK is kind of its separate thing: showing the kind of environment that exists with only common law precedent as your basis, and the good things that can happen when a charter of sorts is imposed on top.

So I'm sure there is an analogous situation you can find in Canadian history of law i just used the UK as kind of an example... I'm not sure if there was a case decided after we left the UK that may very well have provided a protection from that kind of thing happening in Canadian common law jurisprudence prior to the charter. The point remains that the addition of a charter to the UK helped address some weaknesses in the common law system.

D'Rok has a good post where he has had the time to address your other concerns more fully and I endorse his opinions...

 

[Segnosaur]

- The charter contains no protection for property rights

This is a complex question and was hotly debated when the Charter was being drafted. Basically, there are two good reasons for not explicitly including private property rights:

1. Aboriginal Rights

I agree that aboriginal rights do make things a bit trickier. But supposedly the people coming up with the Charter had big brains. I figure they'd be able to code it in such a way that respects both Aboriginal rights, and the rights of the larger non-aboriginal population.

2. Property is arguably a second-order right that flows from other first-order rights (like s. 7 liberty rights and s. 15 equality rights). Libertarians would scream blue murder at this idea, but it has traction in the Canadian zeitgeist. We've always had communitarian notions mixed in with our liberalism.

I don't think Canadian society has ever been big on the idea of property rights. Even though some could argue that it stems from other rights, that's certainly not an iron-clad guarantee, especially if there are plenty of presidents that go against the notion of property rights.

If its a right, I think it should be spelled out explicitly.

Also, property and civil rights are provincial matters. Provincial legislation and the common law already offer significant protection for private property.

Well, property rights are not purely provincial matters... after all, the federal government has expropriated land before for its own uses.

And yes, there is/was some protection for private property without the constitution. But given the presidents, I'd rather that protection be a bit more guaranteed. (Besides, if you're saying we don't need property rights because we're protected by other laws, then why did we need to bring in the Canadian constitution/charter of rights, because we already had protection for most of our rights already.)

- The charter contains the 'notwithstanding' clause, which allows governments to pass laws that violate certain rights if they choose

Has almost never been used and is likely politically impossible to use.

However, the fact that it does exist is the issue. I'd rather not stake my personal rights on what is "likely" politically impossible. (Tell that to Anglophones in Quebec.)

To be honest, I'm not sure why you think its "likely politically impossible". All you would need is some issue for which there is overwhelming popular support for restricting certain rights.

Also, it was an important compromise at the time of drafting because it injects some degree of Parliamentary Supremacy (which was our tradition of governance before the Charter) into our constitutional order. Parliament is made up of our elected representatives, after all. In a democracy, shouldn't the final word go to the legislature, not the judiciary? (That's how the argument goes at least).

Yes, that may be why it was put in there, but that doesn't mean that it's right.

In my opinion, one of the goals of the charter should be to prevent individuals from having rights removed due to the wishes of the majority (i.e. tyranny of the masses).

- Contains provisions for rights to be overridden if its in the 'public good'.

This is simply an explicit acknowledgment of what de facto happens everywhere bills of rights exist. All governments have to abrogate rights on a regular basis. How could we have prisons otherwise? How could we be arrested?

I think the fact that prisons exist is probably because the charter of rights actually discusses issues of crime.

How could we be taxed? The list is endless. The provisions in the Charter are actually a check on this kind of activity, because the tests that the govt has to meet before it can abrogate a right are clearly laid out and they are reasonable and quite stringent.

Not sure what you mean by the tests allowing the government to override our freedoms for the public good are 'stringent'. Various presidents suggest otherwise.

It's important to remember that Human Rights Commissions exist to field private sector discrimination complaints. In other words, the Charter does not directly apply because, when a commission hears a complaint, the alleged rights violation has occurred between two private individuals or entities, not between a citizen or group of citizens and the government.

First of all, you are right in that human rights commissions deal with complaints between private individuals/entities. However, those complaints do not necessarily exist in a vacuum. I rather suspect that many complaints, while between private individuals, deal at least in part with laws that were passed by the government.

Secondly, Human Rights Commissions are not the only forum for these issues. Consider the case of the Little Sister's Book Store, a gay/lesbian store in BC that regularly had its shipments confiscated (even though many of their items were available through other sources). The supreme court argued that even though there were some procedural problems, the idea of seizing material was justified under the constitution.