Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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The Charter of Rights and Freedoms is a fundamental and defining element of the modern Canadian state. While it draws upon certain aspects of our democratic and parliamentary traditions, by entrenching certain rights and freedoms as fundamental, and by assigning an important law-making role to the courts, it also marks a break with the past. No longer are Parliament and the legislatures supreme.

We have suggested that this shift of institutional responsibility - subjecting the powers of elected bodies to review by the courts under the Charter - is supportive of Canada’s traditional democratic values. Experience has shown that majorities, unchecked, may fail to respect the dignity of all individuals, tend to shut out annoying and unpopular views, and ignore or even worsen the plight of vulnerable minorities. The Charter protects the values of individual dignity, autonomy, and respect. These attributes of citizenship are essential to a healthy democracy and to free and open democratic debate. The Charter also protects the rights of those accused of crime, an otherwise unpopular group. It reflects the view that a healthy democracy cannot be defined in terms of crude majoritarianism. The Charter may be seen as Canada’s commitment to the principle that the exercise of power by the many is conditional on respect for the rights of the few. The role of the Charter, we suggest, is to facilitate, not frustrate, democracy.

It is apparent that the difficult task of ensuring that Charter rights and freedoms are respected inevitably embroils the judiciary in difficult and contentious issues of public concern. The courts have been

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willing to exercise the power of judicial review with a certain vigour in many areas. Religious minorities have succeeded in attacking measures that required them to observe the religion of the majority. In some cases, freedom of expression has been defended against measures that limited open debate and dissemination of information. The right to "life, liberty and security of the person" has been found to impose significant constraints on the right of the state to criminalize abortion and to extradite or deport people to face the death penalty or torture. The Charter has had a major impact in the area of criminal justice where judges have not hesitated to subject police powers to close scrutiny. Individual rights of privacy and bodily integrity and the rights to counsel and fair trial have been expanded...

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