Charter from Canada’s awful history

Canada has an awful history of discrimination. And, in response to that discrimination, the Canadian Charter of Rights and Freedoms was created. Few people know about the Charter and its beginnings; so, it is the topic of this week’s column. 

To start, the Charter is a bill of rights, entrenched in the Constitution of Canada. It guarantees certain fundamental rights to all citizens. It was preceded by various other laws, including the Canadian Bill of Rights, a federal statute that could be amended by Parliament. The Charter, on the other hand, is a constitutional document and cannot be easily changed by government.  

The Charter’s birth resulted from Canada’s lengthy history of discriminatory laws and policies. For instance, there were laws prohibiting Chinese workers from working in coal minds, intended to protect local workers from losing their jobs to foreigners. There were also laws prohibiting various groups of people, including Chinese and Aboriginal populations, from voting in federal and/or provincial elections. There were also numerous discriminatory actions taken during World War II, such as the Japanese internment camps. 

In response to the discriminatory laws, several people worked together to discuss a change. These people are the founders of the Charter. 

So, who were these people? Well, there were many, so I can only name a few. The most recognizable name is Pierre Trudeau, the Prime Minister at the time of the Charter’s enactment.  Other notables include 1) Bora Laskin, who became the Chief Justice of the Supreme Court of Canada; 2) Mark McMuigan, who became the Minister of Justice; and 3) Walter Tarnopolsky, who became a justice on the Ontario Court of Appeal.    

In 1982, the Charter was enacted under the federal Liberal government. 

Under the Charter, several categories of rights and liberties are enshrined, including the following:

1) Political civil liberties: These liberties are also known as fundamental freedoms and include freedom of religion, freedom of press, freedom of speech, and freedom of assembly. 

2) Legal civil liberties: These liberties have to do with the protections given to people who come into contact with the criminal justice system. They include the right to be free from police abuse, unreasonable search and seizure, unjust imprisonment, and cruel and unusual punishment.   

3) Egalitarian civil liberties: These liberties have to do with the freedom from discrimination, such as race, disability, sex, age, or national origin.  

For your information, economic rights are missing from the Charter, but are enshrined in America. So, why didn’t the Canadian government include economic rights in the Charter? Well, there are two general reasons: one political and one legal. 

Politically, the federal government wanted the Charter to actually pass and, in order to get the support of the federal NDP, the government had to ‘take out’ economic rights. The federal NDP didn’t think that property/economic rights should have the same status as the other fundamental rights. 

Legally, Canada wanted to avoid the flood of litigation that occurred in America with the enshrinement of economic/property rights. To explain, the US Constitution allows for just compensation when there is a deprivation of the ‘enjoyment of property’, which includes down-zoning and expropriation (government taking/confiscating private property).  In America, a lot of litigation resulted from this issue. 

We are lucky to have the Charter to protect us against abusive/discriminatory government practices. With that said, it should be remembered that our elected officials are still capable of creating Charter-infringing legislation, such as the recent B.C. drunk driving legislation. 

If the government creates bad law, do not hesitate to complain to your politicians. 

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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