The Canadian Charter of Rights and Freedoms.

In a federal state, the constitution sets out the rules for dividing power and responsibility between the federal and provincial governments. The constitution is the supreme law of the land, and all legislation passed by either level of government must comply with its requirements. After the American Revolution, the former British colonies drafted a constitution for their new country, and included a bill of rights to protect individuals against all oppressive state. Following the British tradition, much of our Canadian Constitution was unwritten. in Canada, the rule of law and traditional ideas about the rights of citizens to such things as a fair trial and freedom of the press were part of this unwritten constitution. However, from time to time, various politicians and political thinkers suggested that a mature democracy needed a written bill of rights, enshrined in a formal constitution. Such a bill would set standards against which other legislation could be measured.

After more than a decade of negotiation, the provinces and the federal government agreed on both a new amending formula for the Canadian Constitution and a Charter of Rights and Freedoms. Extensive political lobbying by First Nations peoples ensured that the new Charter recognized their "existing aboriginal and treaty rights." Women's organizations also lobbied to ensure that the Charter aided them in their fight for equality rights. The new Charter and other constitutional amendments were passed by the Canadian Parliament. Her Majesty Queen Elizabeth II came to Ottawa to proclaim the revised Constitution Act in a special ceremony on Parliament Hill on 17 April, 1982.

The drafters of the original Constitution Act, 1867, were careful to avoid weaknesses of the American Constitution. In the same way, the American Bill of Rights served as a model for the Charter, with some features to be copied and some to be avoided. The most significant contrast stems from the different systems of government in the two countries. The United States is a republicy having a government with an elaborate system of checks and balances to ensure that the President, the Congress and the courts have importance cannot be enacted and implemented by one branch of government alone. In the American tradition, the courts, on the basis of the Bill of Rights, can strike down legislation that they believe violates fundamental rights. As the language of the Bill is very general, the Supreme Court has the last word on many matters of social and political controversy. One important example was the desegregation of American schools when the Supreme Court found the principle of "separate but equal" to be inherently unequal.

Canada, however, is a constitutional monarchy, with a parliamentary system of government. The checks and balances come from the fact that the executive branch of the government is responsible to the elected majority in the legislature. The Canadian Charter recognizes the legislative supremacy of Parliament with the "notwithstanding clause." When Parliament or any legislature passes legislation, it has the option to state explicitly in the Act that the statute shall operate "notwithstanding" (in other words, in spite of) certain standards set out in the Charter. Legislators have the power to use the notwithstanding clause to protect legislation from review by the courts or to re-enact legislation that the courts consider to be a violation or denial of Charter rights. However, vote-conscious legislators are wary of the political consequences of using the notwithstanding clause, and have done so only rarely.

The Charter applies only to actions of the government or government agencies. However, some of the rights guaranteed in the Charter, such as the right not to be discriminated against on the basis of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability, are rights that an individual can also claim in certain commercial dealings with other individuals. If a person encounters discrimination in renting an apartment or applying for a job, he or she can complain to a human rights tribunal set up under provincial or federal human rights codes. As in many areas of administrative law, there are elements of the dispute which are part public and part private. In such disputes between private individuals, the state steps in to regulate aspects of the matter.

The rights and freedoms that the Charter guarantees are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Charter guarantees the fundamental freedoms of thought, belief, opinion, and expression. However, laws forbidding the publication of hate propaganda against an identifiable ethnic, racial, or religious group have been upheld. This is a restriction on free speech. But, it is argued that the ban on publishing hate propaganda is justified in order to protect the integrity and right to equality of members of the identified group. And, the protection against self-incrimination does not give an individual the right to refuse to take a breathalyser test.

Despite its limitations, the Charter has profoundly affected the way that Canadians think about law and politics. Increasingly, people expect that the courts, not the elected politicians, will make the final decision on difficult matters. Yet, courts are no more able than politicians to settle moral questions: despite the Supreme Court's declaration that safe and equal access to abortion is, in some circumstances, a woman's right, the legality of abortion continues to be a source of bitter controversy.