Civil Rights and civil Liberties in Canada
Although bordering the United States and sharing a similar legal system, the development of civil rights and civil liberties in Canada has followed a different path, in large part because Canada had no equivalent to the U.S. Bill of Rights until very recently. Provincial codes provided for several rights of the kind protected by the U.S. Bill of Rights, but they did not apply throughout Canada and were far from complete. After World War II, a political movement in Canada championed a Canadian Bill of Rights, and in the 1950s the Supreme Court of Canada issued some rulings that suggested it might develop civil rights concepts on its own. In 1960 the Canadian Parliament enacted a Bill of Rights, but it applied only to the federal government, not to the provinces. Moreover, the Bill of Rights was an ordinary statute that lacked the force of an amendment to the Constitution of Canada.
Beginning in the late 1960s, Prime Minister Pierre Trudeau initiated a complex political and legal battle that ultimately led, in 1982, to the adoption of the Canadian Charter of Rights and Freedoms as part of the Canadian constitution. The charter established a menu of civil rights and liberties similar to those set out in the U.S. Constitution. Additionally, the charter expressly provides for the right of judicial review, permitting those who claim that their rights under the charter have been infringed or denied to seek remedies in court. One major difference between the charter and the U.S. Constitution is that some of the charter's provisions may be overridden in certain circumstances by both the Canadian federal government and provincial legislatures. In the United States, neither Congress nor the state legislatures may pass a law that conflicts with rights protected by the Constitution.
The charter spells out a host of “fundamental freedoms,” including freedom of conscience and religion; freedom of thought, belief, opinion, and expression, including freedom of the press; freedom of peaceful assembly; and freedom of association. It provides “mobility rights” that give Canadians the right to enter and leave Canada and to settle and live in any province. The charter also spells out a host of procedural rights in criminal prosecutions, including the rights of the accused against self-incrimination, double jeopardy, cruel and unusual punishments, and unreasonable search and seizure, and the rights to be presumed innocent, to speedy trial, to representation by counsel, and to habeas corpus. The charter's version of the due process clauses in the U.S. Constitution declares that “everyone has the right to life, liberty and security of the person” and cannot be deprived of these rights “except in accordance with the principles of fundamental justice.”
The charter also provides that all individuals are equal under the law and may not be discriminated against by the law on the basis of race, national or ethnic origin, color, religion, sex, age, or mental or physical disability. This list of protections is more extensive than provided for in the Equal Protection Clause of the U.S. Constitution or than accepted by the U.S. Supreme Court. The charter also expressly permits laws, programs, and activities whose goal is “the amelioration of conditions of disadvantaged individuals.”
Signifying Canada's bilingual heritage, the charter has extensive provisions dealing with the rights of French and English speakers. These include the rights of children to obtain instruction in their birth language, whether English or French, and the right to speak either language in Parliament and the courts.
Although the Canadian Charter of Rights and Freedoms has had legal effect only since 1982, it seems to have prompted Canadians to take their cases to courts in larger numbers, and it has prompted a greater constitutional activism than before from Canada's highest court. The Canadian Supreme Court has followed the lead of the U.S. Supreme Court in several instances, striking down, for example, antiabortion legislation and laws restricting commercial advertising, and excluding evidence from trial if the defendant was not advised of the right to a lawyer. (1)
For an overview of Civil Rights and Civil Liberties in the U.S., read here. For an overview of Civil Rights and Civil Liberties worldwide, read here.