1968: Trudeau became PM. Wanted:
-patriation of constitution
-A Const. Charter of Rights
-felt it would better protect language and mobility rights
1970: Molgat-MacGuigan Committee found strong support for a const.
1971: Victoria Charter
-agreement for a constitutional Charter and patration
-opposed in the end by Quebec and Alberta
1976: PQ elected in Quebec; put an end to constitutional negotiations for awhile
1980: Referendum in Quebec
-Trudeau promised "renewed federalism" in return for a "no" vote. The "No" side won, 60-40.
-constitutional negotiations; no agreement
-result “unilateral” patriation attempt by Trudeau. Opposed by 8 provinces, all but Ont and NB.
-3 of those provinces sent a reference question to Prov Cts of Appeal in Quebec, Manitoba and Newfoundland. These courts decided prior to the "unilateral patriation address" in Parliament could be passed, so feds sent the questions to SCC.
-SCC: unilateral patriation is legal, but breaks convention. Both sides won something and lost something. Thus, another constitutional conference was held in November, 1981, and a compromise agreement was reached that included the feds and all provinces except Quebec.
Content of the Charter:
CONSTITUTION ACT, 1982
Sections 1-34 comprise the Canadian Charter of Rights and Freedoms.
1. the "limitation" clause: This Charter guarantees the
rights set out in it subject only to such reasonable limits, prescribed
by law, as can be demonstrably justified in a
free and democratic society. This means that any limits to rights must be clearly written down in legislation, and must represent a legislative objective which
1. is of substantial importance,
2. a) is rationally connected to the means
used to achieve the objective,
b) employs means which limit rights as
little as necessary to achieve the objective, &
c) provides greater benefits to society than
the harm done in limiting rights.
2. Fundamental freedoms:
a) conscience and religion
c) peaceful assembly (eg. demonstrations)
d) association (eg. to join a union)
3. Every citizen has the right to vote and run for office federally and provincially.
4. There shall be federal and provincial elections at least every five years. However, during a war, invasion or insurrection, elections can be postponed with a 2/3 vote.
5. Parliament and the legislatures must meet at least once a year.
6. Mobility rights: Every citizen can freely leave or enter
Canada. Citizens and permanent residents have the right to move to
other provinces and work, subject to
provincial regulation and subject to affirmative action programs for citizens of provinces with higher than average unemployment.
7. Everyone has the right to life, liberty and security of the
person. However, these rights can be taken away in accord with the
principles of fundamental justice (eg. a
fair hearing, an impartial judge).
8. Unreasonable search and seizure is forbidden.
9. Arbitrary (illegal) detention or imprisonment is forbidden.
10. Everyone who is arrested or detained has the right:
a) to be told why immediately
b) to contact a lawyer and be told of this right
c) habeas corpus (to be freed if illegally detained)
11. Persons chared with offences have the right
a) to be informed reasonably quickly of the charge
b) to a trial within a reasonable time
c) not to be a witness against oneself
d) to be presumed innocent until proven guilty before
an independent and impartial judge
e) to bail unless unreasonable
f) to trial by jury if liable to 5 yrs in jail
12. No one can be subjected to cruel or unusual treatment or punishment.
13. Evidence given by a witness in court can't be used against that witness later on.
14. Everyone has a right to an interpreter.
15. (1) Every individual is equal before and under the law and
has the right to the equal protection and equal benefit of the law without
discrimination and, in particular,
without discrimination based on race, national or ethinic origin, colour, religion, sex, age or mental or physical disability.
(2) Affirmative action programs are permitted.
16. English and French are Canada's two official languages, and also New Brunswick's.
17. English or French can be used in Parliament and New Brunswick's legislature.
18. Parliament's laws and New Brunswick's laws shall be in English and French.
19. English or French may be used in the Supreme Court of Canada, the Federal Court, the Tax Court and the New Brunswick courts.
20. Any Canadian has the right to receive services in either English
or French from the head of any federal government central office, or from
anyone in a federal
government office in an area where there is a "significant demand" (decided by the courts) for service in either English or French. In New Brunswick, all government
offices must provide services in French and English.
MINORITY LANGUAGE EDUCATION RIGHTS
23. Citizens of Canada have a right to have their children educated
in the language of their choice -- English or French -- as long as they
themselves were educated in
that language in Canada. The provincial government must pay for that education up to the end of high school in any area of the province where there is a sufficient
demand for minority lanaguage schools (to be decided by courts).
24. (1) Courts can be as creative as they wish in declaring remedies for persons whose rights have been infringed or denied.
(2) Evidence collected by the police in a way
that infringes or denies rights can be excluded in a court proceeding if
to admit it would, in a judge's opinion, "bring the
administration of justice into disrepute."
27. Judges shall interpret the Charter consistent with "the multicultural heritage of Canadians."
28. Charter rights are guaranteed equally to male and female persons notwithstanding anything in the Charter.
29. Denominational, separate or dissentient schools can continue to exist even though they grant special privileges, thus limiting "equality."
32. The application clause: The Charter applies to all statutes
and orders made by Parliament and provincial governments, but it probably
does not apply to the private
sphere or to courts when they are adjudicating private law disputes under common law.
33. The "notwithstanding" clause: When passing a law, Parliament
or a privincial legislature can declare that for five years, the law shall
Sections 2 and 7-15 of the Charter. These 5-year declarations can be renewed. This provision allows a legislature to take issue with judicial interpretation of the
OTHER PROVISIONS OF THE CONSTITUTION WHICH AREN'T PART OF THE CHARTER:
35. (CA, 1982) Existing aboriginal treaty rights and land claims agreements
are recognized and affirmed (so that they can't be further eroded) and
guaranteed equally to males and
52. (CA, 1982) (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of the Constitution
is, to the extent of the inconsistency, of no force or effect.
(2) The Constitution of Canada includes
(a) the Canada Act 1982, including this Act;
(b) the Acts and orders referred to in the schedule [including the Constitution Act, 1867]; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).
93. (CA, 1867) The provinces control education, except that the feds can intervene to protect Roman Catholic schools in Ontario and separate schools in any province that existed at the time the province entered Confederation.
133. (CA, 1867) English and French can be used in Parliament, and Canada's
laws must be in both languages. Likewise, English or French may be
used in Quebec's National Assembly, and Quebec's laws must be in both languages.
Either language may be used in the courts of Quebec, the Supreme Court
of Canada, the Federal Court and the Tax Court.