Canadian Charter of Rights and Freedoms

from Wikipedia, the free encyclopedia

The Canadian Charter of Rights and Freedoms (Engl. Canadian Charter of Rights and Freedoms , fr. Charte canadienne des droits et libertés ), the Declaration of Fundamental Rights in the Constitution of Canada and forms the first part of the Constitution Act 1982 . It protects the civil rights of the people of Canada from acts and laws of the federal and provincial governments and came into effect on April 17, 1982.

The predecessor of the charter was the Canadian Bill of Rights of 1960, which was only a federal statute and not a constitutional document. Its scope was limited, easily modified, and not applicable to provincial laws. The relative ineffectiveness of Canada's Bill of Rights prompted Prime Minister Pierre Trudeau's government to draft a new declaration of fundamental rights. In particular, the principles formulated in the Universal Declaration of Human Rights should be laid down. At the request of the Canadian Parliament , the British Parliament , which at the time still had to approve constitutional amendments, enacted the Charter as part of the Canada Act 1982 .

content

Under the Charter, residents in Canada enjoy numerous civil and political rights. Most can be exercised by any natural or legal person , but some can only be exercised by natural persons or (in particular Articles 3 and 6) only by Canadian citizens. The rights can be enforced by Article 24 of the Charter by the courts, which also provide remedies for those whose rights have been denied. This article also allows the courts to exclude evidence from legal proceedings if it has been obtained in violation of the Charter and may damage the reputation of the legal system. Article 32 states that the Charter is binding on the federal government and the territories under its authority as well as the provincial governments.

The charter contains the following rights and freedoms:

Fundamental rights (Article 2), namely freedom of conscience , freedom of religion , freedom of thought , freedom of expression , freedom of the press , freedom of assembly and freedom of association .

Democratic rights , generally the right to take part in political activities and the right to democratic government:

  • Article 3: the right to vote and the right to be a member of parliament.
  • Article 4: The maximum length of a legislative period is limited to five years.
  • Article 5: A parliament must hold a session at least once a year.

Mobility Rights (Article 6): The right to enter and leave Canada and the right to settle in any province or to live outside of Canada.

Legal rights : rights of people related to the justice system and law enforcement, in particular

  • Article 7: Right to life, liberty and security of a person
  • Article 8: Protection against disproportionate state encroachment
  • Article 9: Protection against arbitrary detention or imprisonment
  • Article 10: Right to legal advice and Habeas Corpus guarantee
  • Article 11: Various rights related to legal proceedings, in particular the presumption of innocence
  • Article 12: Protection from cruel or unusual punishment
  • Article 13: Right to refuse information
  • Article 14: Right to an interpreter in court proceedings (applies to both foreign speakers and deaf people)

Equality rights (Article 15): Equal treatment before the law and protection by the law without discrimination.

Language Rights : Generally the right to communicate in either English or French in dealings with federal and certain provincial authorities in Canada . In particular, the situation in New Brunswick , the only officially bilingual province, is discussed.

  • Article 16: English and French are the official languages ​​of Canada and New Brunswick, the English and French speaking communities of New Brunswick have equal access to educational and cultural institutions.
  • Article 17: The right to use either official language in the Parliament of Canada or the New Brunswick Parliament.
  • Article 18: Resolutions and minutes of the Parliament of Canada and the New Brunswick Parliament are published in both official languages.
  • Article 19: Both official languages ​​may be used in federal and New Brunswick courts.
  • Article 20: The right to communicate with federal and New Brunswick authorities in either official language.
  • Article 21: Other guaranteed language rights outside the Charter are recognized as legally valid.
  • Article 22: Existing rights to use languages ​​other than English and French are not affected by the fact that only English and French are mentioned in the Charter (this is especially true of the native languages).
  • Article 23: The right of members of a French- or English-speaking minority community to be taught in their own language.

In general, these rights are subject to the limitation clause (Article 1) and the reservation clause (Article 33). Article 1 allows the government to impose certain restrictions on the rights guaranteed by the Charter. Any case where a court finds violation of the Charter must go through an Article 1 review to see if the law can still be upheld. Violations of the law are upheld if government action is necessary to ensure a free society and if the violation is "demonstrably justified". Article 1 was used to lawfully declare laws directed against undesirable behavior such as hate speech or profanity . Article 1 also confirms that the rights set out in the Charter are guaranteed.

Article 33 entitles governments to suspend the rights and freedoms in Articles 2 and 7-15 for five years. The federal government has never applied the reservation clause. In the past, however, it was often used by the Province of Québec (which did not support the introduction of the Charter, but is nevertheless subject to it). This allowed the province not to have to adapt controversial provisions of the Charter of the French Language during the current period . Saskatchewan and Alberta also used the reservation clause, on the one hand to end a strike and on the other to prevent same-sex marriage (in Alberta's case, however, the application was irrelevant as the definition of marriage is not a matter for provincial law).

Application provisions : Further articles regulate how the charter is to be applied in practice.

  • Article 25 states that the charter does not diminish the existing rights and freedoms of the indigenous peoples, i.e. the First Nations , the Métis and the Inuit . Indigenous peoples' rights, including contractual rights, enjoy direct constitutional protection under Article 35 of the 1982 Constitutional Law.
  • Article 26 makes it clear that other rights and freedoms in Canada are not overridden by the Charter.
  • Article 27 requires that the Charter be interpreted in a multicultural context.
  • Article 28 guarantees equality between men and women.
  • Article 29 confirms the preservation of the rights of denominational schools.
  • Article 30 regulates the applicability of the Charter in the territories.
  • Article 31 confirms that the Charter does not extend the rights of legislators.

Finally, Article 32 determines the scope of the Charter and Article 34 states that the first 34 articles of the 1982 Constitutional Act are collectively referred to as the "Canadian Charter of Rights and Freedoms".

development

Several of the rights and freedoms protected by the Charter, including freedom of expression , habeas corpus, and the presumption of innocence , have their roots in Canadian law and precedent. Many were also included in the Canadian Bill of Rights , passed by the Canadian Parliament in 1960 . However, the Bill of Rights was inadequate in some areas. In contrast to the Charter, it was a normal parliamentary decision, could therefore be changed with a simple parliamentary majority and was only applicable at the federal level. The courts kept the Bill of Rights extremely literally and rarely interpreted it to mean that a law was declared illegal. It also lacked some rights in the Charter, such as the right to vote and the right to move around within Canada.

The Canadian Confederation's centenary in 1967 sparked greater interest in constitutional reforms in the federal government. The reforms included the improved protection of rights, but also the "repatriation" of the Constitution (this means that the British Parliament no longer has to approve constitutional amendments ). Pierre Trudeau , then Attorney General , commissioned law professor Barry Strayer to examine the possibility of a catalog of fundamental rights. Strayer's report contained numerous ideas that were later incorporated into the charter, including the protection of language rights. Strayer also proposed the inclusion of economic rights. Finally, he also recommended restrictions on rights. The federal government and the provinces negotiated a new constitution independent of Great Britain. This resulted in the Victoria Charter in 1971 , which, however, was never implemented. After a break of several years, Prime Minister Pierre Trudeau stepped up his efforts again and promised a fundamental constitutional reform in the course of the Québec referendum in 1980 .

The inclusion of a charter of fundamental rights in the constitutional law was controversial. Provincial governments opposed a possible restriction of their power and the progressive-conservative party feared an overly liberal interpretation by the judges. At the suggestion of the progressive conservatives, Trudeau's government decided to set up a commission of senators and members of the House of Commons to further discuss the charter and home management. In the course of these deliberations it was decided that judges should have the right to exclude evidence in certain cases if it was obtained in breach of the Charter. Other features were added, such as the recognition of Canadian multiculturalism. The restriction clause was modified to emphasize less the importance of the parliamentary system of government and more the justification of restrictions in a free society.

In 1981 the Supreme Court of Canada ruled that, according to unwritten law, the provinces should also be involved in the constitutional process. With the provinces still skeptical of the charter, Trudeau was forced to accept the provisional clause. This clause was part of the November 4, 1981 agreement called the Kitchen Accord (“ Kitchen Accord ”). This agreement was so named because it was made during a nightly meeting in a conference center kitchen in Ottawa . Present at the time were Attorney General Jean Chrétien and the Attorney General of Ontario and Saskatchewan, Roy McMurtry and Roy Romanow .

The province of Quebec that since 1975 its own Charter of Fundamental Rights has (the Quebec Charter of Human Rights and Freedoms ) supported neither the Canadian Charter nor the Canada Act 1982, as René Lévesque looked at as a means of centralization, while he himself and the Parti Québécois , the Sought independence of the province. The charter still applies in Québec, as all provinces are bound by the constitution. The ongoing resistance resulted in two failed constitutional revisions ( Meech Lake Accord and Charlottetown Accord ), the main aim of which was to wrest Québec's approval of the constitution.

Elizabeth II , as Queen of Canada, head of state of the country, signed the constitutional law on April 17, 1982, which also made the charter legally binding. However, the provisions on equality rights (Article 15) did not enter into force until 1985. This delay should allow the federal and provincial governments to review existing laws and repeal potentially unconstitutional provisions. The Charter has been amended several times since it came into force. In 1983 the article was rewritten to explicitly recognize more rights regarding the land rights of the indigenous people. In 1993 Article 16.1 was added, which gave the English- and French-speaking communities of New Brunswick equal access to educational and cultural institutions.

Comparison with other human rights declarations

Individual politicians viewed the enactment of a charter of fundamental rights as a violation of British-style parliamentary sovereignty. This contrasts with the fact that the European Convention on Human Rights (ECHR) restricts the power of the British Parliament more than the Charter restricts the power of the Canadian Parliament and provincial parliaments. There is also a belief that the UK Human Rights Act 1998 , which enables the ECHR to be applied directly, was in part inspired by the similarly drafted Canadian Charter.

The Canadian Charter shares some similarities with the ECHR, particularly with regard to the restriction clauses in the European document. Because of these similarities with European case law on human rights, the Supreme Court of Canada relies not only on the case law of the United States' Constitution but also on the cases of the European Court of Human Rights when interpreting the Charter .

The main difference between the US Bill of Rights and the Canadian Charter is the existence of qualifying and provisional clauses. Canadian courts therefore interpret each law in much greater detail. Because of the limitation clause, a right is not necessarily protected in every case if it is violated. In contrast, the rights in the American Bill of Rights are absolute, so that no violation is found until there is sufficient impairment. Ultimately, this means that both constitutions grant roughly the same protection for many rights. The restriction clause allows governments to pass laws that would be considered unconstitutional in the United States. The Supreme Court upheld some of Québec's restrictions on the use of English on billboards or a federal publication ban that prevents the media from naming juvenile offenders.

The International Covenant on Civil and Political Rights has many parallels to the Canadian Charter, but in some cases the Covenant goes further. For example, the right to legal aid in Article 10 had to be interpreted (since it only guarantees “legal advice”), while the Covenant explicitly guarantees that an accused will not have to pay anything if he does not have the necessary means.

With regard to economic and social rights, the Canadian Charter makes few explicit statements. It stands in marked contrast to the Quebec Charter of Human Rights and Freedoms and the International Covenant on Economic, Social and Cultural Rights . Such rights are interpreted differently in Articles 7 (right to security) and 15 (equality).

literature

  • G.-A Beaudoin and E. Ratushny: The Canadian Charter of Rights and Freedoms . Carswell, Toronto 1989.
  • PW Hogg: Constitutional Law of Canada with Supplement to Constitutional Law of Canada Carswell, Toronto 2002.
  • JP Humphrey: Human Rights and the United Nations: A Great Adventure . Transnational Publishers, New York 1984.
  • Rory Leishman: Against Judicial Activism: The Decline of Freedom and Democracy in Canada . McGill-Queen's University Press, 2006.

Web links

Individual evidence

  1. ↑ Sources of Canadian Law ( Memento of the original from June 22, 2000 in the Internet Archive ) Info: The archive link was automatically inserted and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Canadian Department of Justice  @1@ 2Template: Webachiv / IABot / canada.justice.gc.ca
  2. ↑ Barry Strayer: My Constitutional Summer of 1967, Reflections on the Charter ( Memento of the original from October 25, 2003 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Canadian Department of Justice @1@ 2Template: Webachiv / IABot / www.justice.gc.ca
  3. ^ Lorraine Eisenstat Weinrib: "Trudeau and the Canadian Charter of Rights and Freedoms: A Question of Constitutional Maturation". In Trudeau's Shadow: The Life and Legacy of Pierre Elliott Trudeau. Edited by Andrew Cohen and JL Granatstein. Vintage Canada, 1998, pp. 269-272.
  4. ^ Re: Resolution to amend the Constitution, 1981 CanLII 25 (SCC)
  5. ^ Philip Saunders: The Charter at 20 ( Memento of May 27, 2010 in the Internet Archive ), CBC News Online , April 2002.
  6. ↑ Hogg, pp. 733-734