Over the years, there has been a raging debate over the impact of the “Charter of Rights and Freedoms” on the promotion and protection of civil liberties in Canada, which play a critical role in promoting respect for the rule of law and ensuring democracy thrives in the society. Some legal scholars have praised the Canadian charter of rights and freedom while others have condemned it for failing to meet the required standard of rights and liberties needed for a modern society. The debate has majorly been the claim by some scholars that the charter has not ushered in a new era of respect for civil liberties in Canada.
The debate has mainly centered on certain aspects and provisions of the charter, which the proponents of the argument view as being insufficient or lacking enough support in implementation. The opponents, however, view the so-called weaknesses as necessary measures that harmonize the provisions of the charter with other essential social and national interests. They further point out instances where some the charter’s provisions have been seen to promote civil liberties. An evaluation of the strengths and weaknesses of the claim, therefore, warrants an analysis of several instances and cases where the interpretation and implementation of the charter’s provisions have been questioned, sparking debate.
One provision where the debate has arisen before is the apparent lack of clarity on section eight’s requirement for reasonable suspicion by the police to conduct a search or seizure. Varied opinions were for instance expressed by courts and judges in the case of R. V. Mackenzie for example. The appellant had lodged his appeal on the claim that his rights under section 8 of the charter had been violated by the police. He had been stopped by the police, who proceeded to search his car using a sniffer dog, on suspicion of his involvement in a drug-related offense. The appellant, however, challenged the admissibility of marihuana recovered from his car, citing insufficient grounds for the police’s suspicion in the first place. The pre-trial chamber had agreed with him and disallowed the marihuana, a decision later overturned by the Court of Appeal. The accused thereby lodged his appeal at the Supreme Court, which upheld the court of appeal’s court ruling remitting the case to trial. The dissenting judges’ arguments, however, lend credence to the claim of the charter’s insufficiency in protecting civil liberties as discussed. (R. v. MacKenzie, 2013)
The dissenting judges took issue with various factors of the evidence and the testimony of the arresting officer. To begin with, the judges made presentations to the effect that the signs of nervousness, sweating, pinkish eyes and driving on the road known to be a conduit for drug trafficking used by the officer to justify the search were largely subjective. As a result, the judges considered the signs to be lacking sufficient strength to meet the standard for reasonable suspicion. For instance, they observed that the mere fact of driving on a certain route could not be evidence for suspicious behavior especially considering that the road connects two large cities. The view of the appellant’s sweating as warranting suspicion was also questioned since evidence adduced by the defense had cited a weather report indicating that it was a hot day. The fast breathing by the accused could also have been attributable to his being an asthmatic, a fact presented before the court.
As a result, the judges concluded that their training notwithstanding, the police had relied on otherwise common characteristics observed following a stop by police even among innocent motorists. Consequently, the judges found that in the instance there was just generalized suspicion rather than a reasonable suspicion as required by the law. (R. v. MacKenzie, 2013) The judges further argued that allowing the police to draw on their experience and training to justify otherwise weak reasons for unlawful searches would be against the general good of the society. Setting such a precedent could lead to further and more rampant violations of individual’s rights of privacy hence the need to maintain the high standard of measure in establishing the reasonable suspicion for the searches. An evaluation of this case, therefore, demonstrates the charter’s insufficiency in providing clear grounds for a search. Consequently, it gives strength to the claim of the charter’s failure in adequately securing civil liberties.
The claim is also supported by the provisions of section one’s limitation clause. The chapter provides for the limitation of the rights and freedoms under certain circumstances, potentially giving some government institutions and agencies absolute power over the people’s liberties where issues such as national security and the society’s well-being are cited. (Boyd, 2014) Critics, therefore, argue that though the provisions of the chapter may have been in good intention, the clause could be exploited leading to civil liberties violations.
In addition to that, the claim is also founded on the often-controversial provisions of section 33. The section allows the federal government or the provincial administrations to develop policies that can override the fundamental rights and freedoms albeit temporarily. Following the two provisions, the government and government agencies could circumstantially interrupt the freedoms of conscience, freedom of association and assembly as well as the right to belong to any religion of choice. Under circumstances where the rights may be violated in the promotion of the interests of the society and the rule of law, the victims would have little legal protection. The controversial provisions are therefore often cited as giving strength to the claim of the charters inadequacies in the enhancement of the respect for civil liberties. (Boyd, 2014)
Despite the criticism of the charter’s shortcomings, evidence can be adduced to demonstrate the charter’s influence in promoting civil liberties. Such evidence, therefore, exposes the weaknesses of the claim as it gives little consideration to some of the significant positive developments in the protection of civil liberties courtesy of the charter. A look at the history of civil rights before and after the establishment of the charter demonstrates its massive impact in the promotion of those liberties.
Following its enactment, the charter signaled a significant step in strengthening the freedoms and rights of Canadians. Though previously provided for under the bill of rights of 1960, the freedoms therein were frequently subject to violations following the doctrine of parliamentary supremacy. There lacked a clear outline of the enforceability of the law providing for the rights and freedoms especially where its observance would mean a collision with other laws enacted by parliament. In the case of R. V. Drybones for example, the court ruled in favor of the accused who had cited being discriminated against based on his race. The court’s praises and approval by civil liberty activists for protecting human rights and freedoms were however short-lived following the courts controversial ruling in the Canada (A.G) V. Lavell case. Ms. Jeannette Lavell had challenged the Indian act on gender-based discrimination following the act’s requirements that a female band member who married a non-status Indian would have their names struck off the Indian register. Though the right against discrimination on race and gender are both provided for in the bill of rights, the exclusively male bench ruled contrary to the earlier ruling in the Drybones case, sparking criticism. (Boyd N. , 2014)
However, the enactment of the charter in later years heralded a new dawn for the protection of civil liberties and freedoms. Under the charter, new pieces of legislation ought to be tested against their enshrined values. Where the law if found to contravene the provisions of the charter of human rights, the particular is set aside. The charter therefore significantly solidified the protection of human rights in an unprecedented manner. The realization of this enormous role played by the charter, thus, leads one to realize the weakness of the claim that it has not led to a new era of respect for civil liberties.
Another instance where the charter provided room for the expansion of human rights was in the case of the Aborigines, whose rights were recognized and protected following the provisions of section twenty-five of the charter. The Charter’s recognition of the rights of the aborigines is based on the realization that Canada is made of people from different backgrounds and cultures. Due to that fact, it is essential to recognize all of them equally to ensure peace and harmony among various members of the society. Failure to acknowledges the Aborigines could have had a severe effect on the stability of the country. As an example of the charter’s expansion of rights and freedoms, amendments to section twenty-five of the Charter has given the Canadian government responsibility to consult the aborigines before making critical decisions related to how national resources would be used. However, the Charter does not provide indigenous communities with the absolute right in determining how shared resources will be used but instead provides for the equal participation of all communities. (Mathen, 2007)
The Charter also promotes the protection of traditional practice of different societies in Canada which helps preserve the people’s cultures. For example, the Charter provides for protection of the Aboriginal rights related to fishing, thereby safeguarding their main source of livelihood. (Mathen, 2007) In addition to that, the charter is credited with the protection of the rights of other minority groups. Such groups include the gays, bisexuals, lesbians, and transgenders, as was demonstrated in the case of Halpern V. R (2003) (Boyd N., 2014) Therefore, the charter has evidently enabled the defense of rights of certain marginalized communities who would have suffered otherwise. The clear role of the charter in the expansion of those rights consequently renders weak the claim on its insufficiency.
The charter is also praised for its protection of human rights against injustice as was demonstrated in the case of Canada (Prime Minister) V. Khadr (2010) The accused; a Canadian citizen had been detained in Guantanamo Bay in Cuba by the US military on war crime charges. Later, officers of the Canadian intelligence services had questioned him and submitted the results to the American authorities. However, the officers had conducted the questioning while knowing that the accused had been subjected to sleep deprivation, a technique used to minimize a subject’s resistance to interrogation. In doing so, the officers had aided a regime that was in violation of the rights of accused to fundamental justice, provided for under international law. Canada was bound by section seven of the charter to protect Khadr’s rights and freedoms. (Canada(Prime Minister) v. Khadr, 2010)
In the case, the court found the state to have violated the rights of the accused by participating in depriving him of his liberty and security as per section seven of the charter. The court concluded that Canada had acted contrary to its international obligations by aiding in the subversion of the fundamental justice provided for in international law. As a result, the court granted the accused his request and ordered the Canadian government to request the repatriation of Khadr from the United States. He was also awarded remedies due to him for the violation of his rights. From this case, it is evident that the charter has aided in compelling the government to adhere to international obligations, especially on human rights. (Canada(Prime Minister) v. Khadr, 2010) Therefore, this illustration exposes the weakness of the claim that the charter has failed in its objectives.
In conclusion, it is evident that the debate about the charter’s role in promoting the respect for civil liberties is unlikely to end anytime soon. Since the courts continue to interpret various provisions of the charter depending on the specific facts of each case, they are likely to arrive at conclusions that may be viewed as contradictory, especially where the differences in facts are relatively obscure.
In addition to that, the judiciary and the legislature are tasked with a big responsibility of ensuring continued improvements in the charter. Despite the recognition of the independence of both arms of the government and the supremacy of the legislature in the Canadian democracy, it is imperative that both arms work together to protect and improve the rights and freedoms of the people. While doing so, consideration ought to be given not only to the individual rights but also those of the entire society and nation. While the debate rages, however, it is worth noting that, the perceived shortcomings notwithstanding, the existence of the charter has resulted in significant improvements in the protection of civil liberties.