Why Canadian Rights Aren't Guaranteed

Under Canada’s current political system and climate, none of its citizens’ rights and freedoms are guaranteed. This very idea is built into the Canadian Charter of Rights and Freedoms.


3 min read
Why Canadian Rights Aren't Guaranteed

Under Canada’s current political system and climate, none of its citizens’ rights and freedoms are guaranteed. This very idea is built into the Canadian Charter of Rights and Freedoms. We also see this disregard for human rights through recent measures that restrict movement in Quebec and Ontario in which those governments are providing no legal justification.

It Was Written

When the 1982 Constitution Act enshrined the Canadian Charter of Rights and Freedoms, the charter came with two provisions designed to inhibit individual liberties; section 1 and section 33. Section 1 of the charter says “[...] that Charter rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society.” The Oakes Test was then designed by the Supreme Court of Canada in 1986 to interpret whether those limits are justified in certain instances. The test is a two-step process based on whether the law under review is a pressing one and the results of a proportionality analysis (the legal process of obtaining a just result through balancing). Therefore if these two conditions are met a lot of the legal protections that we are afforded can be overridden.

The other section is section 33, also known as the notwithstanding clause. The notwithstanding clause gives federal or provincial authorities the ability to override certain sections of the charter that they don’t like for a period of up to 5 years. The clause can be re-enacted endlessly. This therefore also gives a majority government the ability to continuously suppress rights if it’s continuously elected. This situation helps highlight the flimsiness surrounding the protections around our rights and freedoms as Canadians.

In Practice

This disposition of not respecting Canadian rights is now also seen through recent COVID-19 restrictions put in place by both the Quebec and Ontario provincial governments. Back on January 9th, the CAQ (the leading party in the Quebec government) imposed a curfew for most of the province of 8:00 pm - 5:00 am. As constructed, the curfew violates parts of section 2 of the charter relating to freedom of assembly and it violates section 6 in regards to freedom of mobility. Since the initial implementation of the curfew, times have varied and changed by area. One thing that still hasn’t changed is that the Quebec government hasn’t provided any legal justification for their curfew. They haven’t invoked the notwithstanding clause nor proven the previously mentioned Oakes test in a court case. They haven’t even provided any justification under public health law where they might even have some actual merit under Article 123 (8) of the Quebec public health act.

These worrying trends are mirrored with Quebec’s sister province of Ontario. The Ontario government led by Doug Ford has shut down non-essential travel to and from Quebec as of April 19th. Subsection 6(2) of the charter affirms that Canadians have a right to move and live in any province they choose. Once again we have another example of a provincial government restricting charter rights while also failing to provide legal or constitutional grounds to do so.

A Dangerous Precedent

Once one can begin to grasp that the Canadian charter was built with the intent to limit freedoms and that levels of our government are imposing laws with no legal backing we can come to see that none of Canadian rights are guaranteed. The precedent which was set by how weak our protections for our rights and freedoms in our constitution has allowed these levels of government to ignore it more and more. With time and without reform the situation could end up becoming even direr.

Sources

https://laws-lois.justice.gc.ca/eng/const/const_index.html

https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html

https://www.constitutionalstudies.ca/2019/07/oakes-test/#:~:text=using%20section%201.-,The%20Test,be%20both%20important%20and%20necessary.

https://montreal.ctvnews.ca/quebec-now-officially-under-curfew-for-the-next-four-weeks-1.5260558?cache=qpcupizl%3FclipId%3D89531

https://www.thelawyersdaily.ca/articles/23769/legal-experts-question-justification-of-quebec-s-covid-curfew

https://www.cbc.ca/news/canada/canada-constitution-notwithstanding-factsheet-ford-1.4817751

https://www.cbc.ca/news/canada/montreal/quebec-ontario-border-closed-1.5991552

https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html#a2d

https://uk.practicallaw.thomsonreuters.com/2-205-7994?transitionType=Default&contextData=(sc.Default)&firstPage=true


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