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 May 2010 - Nr. 5

In the early 1950s, working in the historic East Block of the Parliament Buildings, Pierre Trudeau’s lifelong preoccupation with Canada’s constitution took root. Three decades later, as the country’s prime minister, Trudeau remodelled the Canadian constitution and embedded into it an explicit guarantee of the rights and freedoms of all citizens. That was the Constitution Act of 1982 and the Canadian Charter of Rights and Freedoms — the most important part of the framework of rules under which Canadians are governed.

A strong link between human rights and the law emerged after the crimes of the Second World War became fully known. In 1948 the United Nations adopted the Universal Declaration of Human Rights, affirming that every person had inalienable rights; the document was drafted in its original form by a Canadian, John Humphrey. Saskatchewan was the first of the Canadian provinces to adopt a law protecting human rights and other provincial legislatures followed with similar legislation.

The Parliament of Canada recognized its responsibility to safeguard the democratic liberties of Canadians in a 1960 Bill of Rights that guided Parliament, the courts and the federal government, but was not binding on the provinces. The Bill of Rights was a tentative move towards the Trudeau’s Charter.

Trudeau shared in what has been called the post-Second World War rights revolution. He championed the UN universal rights declaration, worked with the Canadian Civil Liberties Association and fought against the domination of Church and government in Quebec. He believed passionately that a just society was one that protected personal liberty and promoted individual freedom.

Yet Trudeau also thought that freedom had to be preserved and extended without destroying order. Balancing the two is a crucial part of his Charter, which combines the defence of citizen freedoms with a concern for the rights of groups within society and the interests of the country as a whole. Thus Section 1 of the Charter states that personal rights and freedoms have reasonable limits.

The Charter does not belong to Trudeau alone. Interest groups and individuals made their views known to the government and the Parliament of Canada, resulting in important protections for gender equality, multiculturalism, and aboriginal rights.

The Charter protects:

  • The fundamental freedoms of thought, speech, religion, and peaceful assembly

  • The democratic rights of every citizen to vote in regular elections

  • Mobility rights to work, live in, or move to any part of Canada

  • The legal rights of presumption of innocence and a fair trial

  • The right to the equal protection and equal benefit of the law without discrimination based on race, national, or ethnic origin, colour, religion, sex, age, or mental or physical disability

  • The official languages of English and French in the government and legislatures of Canada and New Brunswick

  • French and English language group rights to education in their mother tongue where there are sufficient numbers to justify it.

Any one of the legislatures of Canada can pass a law that goes against, or overrides, the Charter, except when it affects democratic, mobility, and language rights. Such a law can only be for five years, although it can be reenacted for additional periods of five years. This provision of the Charter, Section 33, was a bitter disappointment to Trudeau, but it was a necessary compromise to get provincial support for the Constitution Act. Canadian legislatures have seldom used Section 33.

A considerable and complex body of Charter law has been built up since 1982, and the Supreme Court of Canada has given opinions in hundreds of cases. In Multani v. Commission scolaire Marguerite-Bourgeoys in 2006, citing the Charter’s protection of freedom of religion, the Supreme Court ruled that a young Sikh male had the right to come to school with a kirpan, a small sheathed ceremonial sword worn by Sikhs as a religious symbol.

In the 1992 Butler case, the court ruled that freedom of speech under the Charter did not extend to the publication and distribution of pornography. Here the emphasis was placed on the values of and risks to Canadian society.

The Chief Justice of Canada, Beverley McLachlin, uses Butler to explain the difference between how Canadians and Americans interpret rights. Canadian law, she points out, protects language, religions, aboriginal communities and the general public welfare, while in the United States, “the ethic of the individual is foremost.”

Critics complain that the Charter has put too much law in the hands of powerful judges who are not accountable to Parliament or the people. Yet the Charter is popular with Canadians. It has become, in McLachlin’s glowing words, part of how the country defines itself — a forward-looking statement of “the distinctive Canadian values of respectful tolerance, pluralism, and interlocking rights and responsibilities of the individual and the state.”

Norman Hillmer is Professor of History and International Affairs at Carleton University. The best place to read about the Canadian Charter of Rights and Freedoms is on the internet. The text of the charter is readily available there, and websites such as those of the Library of Parliament, the Supreme Court of Canada, and the Canadian Encyclopedia have further information.

Next Instalment: Democracy in Canada: Elections and Voting

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