The Charter at 25: A work in progress

Le Canada-sans-le-Québec : «A work in progress»

Over the last 25 years, Canadians have come to realize that the Charter of Rights and Freedoms is much more than an eloquent statement of our national values. Indeed, since it came into being on April 17, 1982, the Charter has brought powerful, profound and often controversial change to this country. Time and time again, Canadians have invoked it to right wrongs, fight inequality, challenge excessive government power and uphold fundamental democratic rights.
Ultimately, we are a stronger, fairer, more compassionate nation for it.
Few of the thousands of Canadians who braved a downpour on Parliament Hill exactly 25 years ago today to witness the patriation of our Constitution and the birth of the new Charter would have predicted just how great an impact the Charter, which entrenched basic rights and freedoms in the Constitution for all Canadians, would have on this country.
Today, it is difficult to imagine Canada without the Charter. It guarantees the right to vote, the right to life, liberty and security, and the right to be free from discrimination. It also set out the legal rights of those accused of crimes, including the right to be presumed innocent until proven guilty. And it guarantees key democratic freedoms, including freedom of conscience, expression and association, and freedom of the press.
But in the first days of the Charter, it was uncertain just how far the courts would take these rights and freedoms.
In early cases, the courts fleshed out exactly how the new Charter would work. In R. v. Oakes, for example, the Supreme Court in 1986 set out a key test for deciding whether a Charter breach can be justified by the government, creating a structure for balancing individual and collective rights.
But soon, Canadians started turning to the Charter to sort out thorny social and ethical issues. The results, while infuriating to some, in many cases brought justice to those who had long been denied it.
In one of its first post-Charter forays into a highly charged moral debate, the Supreme Court in 1988 struck down Canada's abortion law. Although the court left room for Parliament to rewrite the law, no government has ever done so, effectively giving women the right to choose.
The court also has said Canada cannot extradite suspected criminals to other countries without guarantees they will not face execution. The ruling signalled that Canada could likely never revive the death penalty.
Most controversially, Canada's top court in 1995 "read in" sexual orientation as a prohibited ground of discrimination, paving the way for same-sex couples to gain full legal rights, including the right to marry.
Less attention-grabbing but no less important, the Charter also has forced police and prosecutors to meet high standards of procedural fairness in criminal cases, acting as a check against arbitrary state power.
For all that, the Charter is still a work in progress. Hundreds of rulings have already given it shape and form. But Canadians continue to test its limits with issues its drafters probably never envisioned.
Issues such as timely access to health care. In 2005, the Supreme Court struck down Quebec's ban on private health insurance for procedures covered by medicare, saying it violated the province's own charter of rights. While the judges split on whether it also breached the Canadian Charter, the ruling did signal the court's willingness to light a fire under governments in fundamental Canadian public policy areas.
More recently, the Supreme Court ruled in February that parts of Canada's controversial security certificate law, used to detain non-citizens suspected of having terrorist ties, violated the Charter, and gave the government a year to fix them. In an age of global terrorism, the case shows our courts are ready to step in to ensure Canada maintains a healthy balance between national security and the basic liberties we hold dear.
That the Charter has proved itself adaptable to these new problems is a testament to the skill of the political leaders who hammered it out, and the governments, judges, scholars and citizens who continue to redefine it. It is not frozen in time, but is a living, breathing document.
But as the Charter marks this important milestone, its future is cloudy.
Restrictions on legal aid and the federal Conservative government's recent decision to kill the Court Challenges Program, which helped fund constitutional challenges, are making the Charter less accessible.
At the same time, Prime Minister Stephen Harper's tinkering with the committees that select judges threatens to undermine the independence of the bench, a cornerstone of our justice system.
These threats strike at the very heart of the Charter process. How meaningful are constitutional rights that Canadians cannot afford to enforce? And how can judges chosen, at least in part, for their perceived willingness to defer to politicians be counted on to rein in laws that go too far?
As the Charter enters its next quarter-century, Canadians must remain vigilant against forces that threaten to constrict this vital document.

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