Canadian Charter of Rights and Freedoms, the only Charter of Rights entrenched in the Canadian Constitution, came into force on 17 April 1982. According to section 52 of the CONSTITUTION ACT, 1982, every law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force and effect. The SUPREME COURT OF CANADA in the Skapinker case of May 1984, declared unanimously that the Charter "is a part of the Constitution of a nation ... part of the fabric of Canadian law ... the supreme law of Canada." It also declared that "the Charter is designed and adopted to guide and serve the Canadian community for a long time.... With the Constitution Act, 1982, comes a new dimension, a new yardstick of reconciliation between the individual and the community and their respective rights, a dimension which like the balance of the Constitution remains to be interpreted and applied by the court."
The Canadian Charter of Rights and Freedoms was an important issue in the debate concerning the patriation of the Constitution. The majority of the provinces, while not adverse to a Charter of Rights, had other priorities, particularly the enlargement of some of their powers. In November 1981 Prime Minister P.E. TRUDEAU accepted the Alberta-Vancouver formula of amendment endorsed by 8 provinces, and the provinces accepted the Charter of Rights, but not without imposing the exercise at will of a derogatory clause ("notwithstanding" clause of s33) for certain sectors of the Charter: fundamental rights, legal rights and the equality rights. By invoking the derogatory clause, the provinces (and Parliament) can declare any law exempt from the provisions of sections 2 and 7 to 15 of the Canadian Charter. The compromise resulted in the Canada Act, 1982, and the Constitution Act, 1982.
Within the Canadian Constitution, the Charter occupies a central place. The courts, which in the past have ruled on the division of powers and have declared ultra vires statutes that violated such division, will now rule also on whether federal and provincial statutes are compatible with the Charter.
A constitutional Charter of Rights always gives rise to a profound debate between 2 philosophies at the time of its entrenchment in a constitution. The first favours entrenchment so as to ensure that the courts have the last word in the field of liberties; the second holds that Parliament and the legislatures should have the last word. The general tendency in the constitutions since WWII is in favour of the entrenchment of rights.
The object of a Charter of Rights is to protect the citizen against the STATE, and to protect minorities against parliamentary majorities. The Canadian Charter is comprehensive and covers several fields: fundamental rights, democratic rights, mobility rights, legal rights, equality rights and linguistic rights. The equality between men and women is also expressly protected by a particular section of the Charter. Aboriginal rights and freedoms are not affected.
The Canadian Charter of Rights and Freedoms was not adopted by the House of Commons and the Senate in its original form. More than one amendment was brought to the October 1980 version. Several individuals and pressure groups appeared before the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada. The 1208 submissions and the hearing of 104 witnesses resulted in the April 1981 version, which in the form of a Resolution was passed by both Houses. The April version, after the decision of the Supreme Court on patriation in September 1981, was further amended as a result of the 5 November 1981 agreement between the federal authority and 9 provinces.
Québec has invoked the derogatory clause of s33 of the Charter in respect of all its previous laws dealing with matters related to sections 2 and 7 to 15 of the Canadian Charter; Québec has done the same since 17 April 1982 for its statutes concerning those matters. Québec challenged, without success, the whole process, arguing that it had a right of veto according to a convention of the Constitution. The Supreme Court declared that such a convention does not exist. However, the new government of R. BOURASSA elected on 2 December 1985, decided not to use the derogatory clause in a global way.
By 1987 the Supreme Court of Canada had rendered more than 20 decisions on the Charter. Many of them are landmark decisions; eg, the CRUISE MISSILE CASE (Cabinet's decisions subject to Charter), BIG M DRUG MART (the Lord's Day Act violates the freedom of religion), OAKES CASE (presumption of innocence, and, limitation clause in s1 of the Charter), VALENTE CASE (judicial independence), Québec's BILL 101 CASE, Hunter v Southam(unreasonable seizure), SINGH CASE (fundamental justice). Article 35 (native rights) was amended, article 28 (sexual equality), article 40 (compensation for education and culture) and article 59 (language rights in Québec) were added in November 1981, after the constitutional conference, before the Resolution was finally adopted by the federal Houses and sent to the UK as part of the patriation process.
