Chapter 7 Chapter Overview

In modern democracies the recognition of rights and freedoms emerged in the mid-to-late twentieth century as societies demanded these protections from the state. The Canadian experience on rights demonstrates a slow evolution from the Constitution Act, 1867, which barely mentioned any rights to the Constitution Act, 1982, which entrenched a charter of rights and freedoms. Chapter 7 considers several topics including the contested nature of rights, the pre- and post-Charter era and issues around application of the Charter and the so-called Americanization of Canadian politics with the introduction of a codified list of rights.

Rights and freedoms are often expressed in uncompromising language, but in reality, they are not absolute. Rights are those individual and group entitlements considered fundamental to human dignity, while freedoms involve an individual’s liberty to do or believe certain things without restraint from government. The major categories of rights and freedoms included in the Canadian Charter are political rights/fundamental freedoms, democratic rights, legal rights, economic rights, equality rights, language rights, and Aboriginal rights. While rights find their origin in political struggles, in order to be legitimate, they must be successfully linked to society’s fundamental values. Prior to the Charter era, rights issues were quite marginal. The principle of parliamentary supremacy was respected by the courts and the public in general.

Growing concern over rights from a few significant rights cases led to the implementation of the Canadian Bill of Rights by the Diefenbaker Progressive Conservative government in 1960. However, this Bill did not have the impact that civil libertarians had hoped because the courts generally interpreted it very conservatively. By 1982, the Charter of Rights and Freedoms was entrenched in the constitution in 1982, and its impact has been very significant. Since its implementation, judicial supremacy has replaced parliamentary supremacy. Canadian courts including the Supreme Court have heard thousands of Charter cases. The notwithstanding clause was included in the Charter to give legislatures a way to override the Charter, but its use has been limited due to fear of potential political consequences and it has essentially gone out of use.

In the critical backlash to the Charter, several observers worried about the rise of the power of judges and courts and the so-called “Americanization” of Canadian politics. The chapter considers theses critical approaches to impact of the Charter on Canadian political culture and institutions.