Saturday, April 07, 2007

Canadian "Charter of Rights and Freedom" - Twenty Five Years After...

The Queen and Prime Minister Pierre Elliot Trudeau signing the Charter of Rights and Freedom, the Constitution Act of l982..

Twenty Five years after the Charter:

Twenty Five Years ago the "Constitution" came home and the Charter of Rights and Freedoms was born.

Canada was created as a Nation by the British North American Act (BNA), an Act by the British Parliament and also the Supreme Law of Canada.. Until the repatriation of the Act, it can only be amended by the British Parliament. It was repatiated in l982.

And since that drizzly ceremony on April 17, l982 where the series of signatures, including that of Queen Elizabeth II was affixed to the Document, Canada has it’s own Constitution drafted and enacted by our own Government. Otherwise known as the Constitution Act of l982, the Charter of Rights and Freedom was entrenched in the Constitution and become the basis of hundreds of Challenges that have gone all the way to the Supreme Court to determine how far
the country will go on abortion, same-sex marriage, the death penalty, private health care, police powers, Sunday shopping and freedom of speech.

Many laws were struck down as unconstitutional and many were upheld.

In this entry I will post the few notable challenges and the resolutions:

Oakes (1985)
Established the framework for analyzing all Charter claims – a multi-part test that requires courts to consider whether the government can justify unconstitutional laws or practices. After being charged with drug possession, Edward Oakes successfully argued "reverse onus" provisions in the Narcotics Control Act, which required accused people to prove they were not in possession of a narcotic, violated presumption of innocence.

The Oakes case becomes the basis for which the Courts will determine the Justifiable and Reasonable Limits to all rights. It is now popularly known as the "Oakes Test". You pass the test you win your challenge..

B.C. Motor Vehicle Reference (1985)
Landmark case giving judges sweeping powers to apply the Charter, including striking down laws, a cornerstone for judicial activism. The case involved a challenge to a B.C. law that imposed jail terms on anyone driving with a suspended licence.

This case was the basis where a judge, even in the lower court could declare a particular law unconstitutional and that will make the law ineffective until it is repealed or replaced or modified by the Parliament (Federal or Provincial).

Chaoulli v. Quebec (2005)
Quebec's ban on private health insurance struck down. In 4-3 ruling, Supreme Court says Quebec government can't prevent people from buying private health insurance for procedures covered by medicare. George Zeliotis, tired of waiting for a hip replacement, had joined forces with Dr. Jacques Chaoulli, who wanted to set up a private medical clinic for the procedures. Case regarded as a referendum on Canadian health care.

Although most basic health care procedures are covered, it is a first come first serve basis. This challenge allow private insurance coverage for procedures already covered by the Universal Health Care.
Note: The federal government has just enacted a law regarding the "wait time" for medical procedures. The law specifies the maximum "wait time" for which a procedure should be performed. That is for electives or non-emergencies.

Security certificate limits
Charkaoui v. Canada (2007)
Supreme Court rules that aspects of Canada's security certificate regime used to detain and deport suspected terrorists violate principles of fundamental justice. People detained on the certificates were generally not allowed to see evidence against them on the grounds it involved "national security."

These particular provisions of Immigration Law, also used to combat suspected terrorists under the anti-terror law also extend the Charter Fundamental Rights to even non-citizens or even illegal aliens.

Most of these challenges were funded by the Government Legal Aid programs, but were slowly but gently cut and some were pro bono basis...

Some of the Provisions of the Charter which I like the most are:

Fundamental Freedoms
Fundamental freedoms 2. Everyone has the following fundamental freedoms:
freedom of conscience and religion;
freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
freedom of peaceful assembly; and
freedom of association.

Equality Rights:
Equality before and under law and equal protection and benefit of law 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 ethnic origin, colour, religion, sex, age or mental or physical disability.

Through a series of court decision, "sexual orientation" is now included as one among the groups that are entitled to Equality. The coverage is now complete..

And to make sure that each and everyone must be Aware that with these Rights and Freedoms, come the reminder that without Responsibities and Reasonable and Justifiable Limits, such rights will be subject to abuses and failures inherent to human individual. Section 1 is the Check and Balance of the whole Charter.

Guarantee of Rights and Freedoms
Rights and freedoms in Canada
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

There you go, the Supreme Law of the land, may not be perfect, but without it, might as well live in the Jungle....