30th anniversary of the Canadian Charter of Rights and Freedoms12 April 2012
FREDERICTON (GNB) – The following statement was issued today by Randy Dickinson, chair of the New Brunswick Human Rights Commission, on the occasion of Equality Day, April 17:
On April 17, we will be celebrating Equality Day to mark the 30th anniversary of the Canadian Charter of Rights and Freedoms, which is certainly one of Canada's most important legal documents.
It is no exaggeration to say that the charter profoundly transformed human rights in Canada. Until the charter was added to Canada's constitution, human rights was a fairly minor and narrow area of Canadian law. Although there were human rights legislation and commissions throughout Canada, most of them were designed to address equality rights exclusively.
Many civil liberties and legal rights, such as freedom of speech and the right to a lawyer, were either not protected in any written law at all or were protected only by the Canadian Bill of Rights of 1960. This somewhat ineffective federal law demonstrated that human rights would not be taken seriously unless they were included in the constitution, as they were in the United States and several other leading countries.
The idea of a constitutionally entrenched charter of rights gained traction although it was a very controversial idea in some quarters. There were dire warnings about the potential negative legal consequences and much opposition was generated to such a proposed charter of rights. For a time, it looked hopeless that Canadians would ever be able to agree on a charter.
However, after much discussion and different draft versions, compromises were reached and the current Canadian Charter of Rights and Freedoms emerged and was adopted in 1982. Looking back 30 years later, we can confidently say that it has transformed Canada's legal system for the better. For the first time, many of the rights that we take for granted, such as the right to move to another province and the presumption of innocence, became protected in the constitution. Some of its novel features have been copied in the human rights charters of other countries. Arguably, the charter has allowed Canadian human rights law to leapfrog its American counterpart, which has been struggling to keep up ever since.
Given its powerful and wide-ranging impact, the charter is a surprisingly short and readable document. It has only 34 sections, running about seven pages. It includes fundamental freedoms (e.g. freedom of religion), democratic rights (e.g., the right to vote), mobility rights, several legal rights (e.g., protection against search and seizure), equality rights, and language rights (e.g., the right of New Brunswickers to receive government services in French or English).
Like many other laws, the New Brunswick Human Rights Act was directly impacted by the charter. It was due to the charter that our act was amended in 1985 to prohibit discrimination based on mental disability, which is now part of the second most frequent ground of complaint which relates to disability. It was also largely due to case law under the charter that sexual orientation was added to the Human Rights Act in 1992.
One of the keys to the charter's effectiveness was the Court Challenges Program, which funded equality and language rights test cases in the courts. The program was basically eliminated by the federal government in 2006, and its absence has exposed the charter's main weakness. The charter is enforced by the courts and not by any government agency. In practice you need a lawyer to enforce your charter rights and the court litigation process can be both long and expensive.
A major advantage of anti-discrimination laws such as the Human Rights Act is that they are enforced by human rights commissions. You do not need a lawyer to proceed with a complaint. The other benefit is that they apply to both the private and public sectors, while the charter applies only to laws and other government activities. Most of the complaints received by the Human Rights Commission are filed against businesses that have allegedly discriminated against their employees or customers.
As a result, there is little duplication between the charter and human rights acts. In a way, they are complementary since human rights acts partially remedy one of the charter's weaknesses which was the omission of most social and economic rights. There is no charter right to health care or employment, for example. On the other hand, human rights acts are mainly concerned with basic economic and social rights such as equal access to employment, housing and public services like education and health care.
Thirty years later, the Charter of Rights and Freedoms has become a Canadian institution and a part of what makes Canada what it is. It is a source of pride for Canadians and, like Medicare, hockey and the Canadian flag, it is one of the symbols that define Canada to Canadians and the world.
On its 30th anniversary, I invite New Brunswickers to read the charter and become familiar with its clauses, its impact and its history. There are a couple of websites where you can find out about Canada's most important legal document.
● Canadian Charter of Rights and Freedoms: www.laws-lois.justice.gc.ca/eng/charter/CHART_E.PDF
● Inside the charter: www.charterofrights.ca/en/11_00_01