The Canadian Charter of Rights and Freedoms: an integral part of our constitution.

• Author: McKay-Panos, Linda
• Position: Feature: Constitutions

This year marks the 30th anniversary of the Canadian Charter of Rights and Freedoms. The Charter has had a significant impact on our governments and courts and it is a part of our Constitution. How does the Canadian Charter of Rights and Freedoms (Charter), the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, relate to our current Constitution, the Constitution Act, 1867, 30 & 31 Victoria c 3 (UK)?

A brief review of some events in the days leading up to the Charter follows. In January 1968, a federal-provincial first ministers' conference was presented with a document penned by Pierre Elliott Trudeau, "A Canadian Charter of Human Rights" (P. Macklem and J. Bakan et al, Canadian Constitutional Law 4th ed Toronto: Emond Montgomery Publications Limited, 2010 at page 719 ("Macklem and Bakan")). This document traced the historical evolution of human rights around the world, and the history of rights recognition in Canada. For example, before Canada passed the Charter, we had the Constitution Act 1867, common law principles that recognized rights, and a Canadian Bill of Rights, 1960.

The existing Constitution Act, 1867addressed the division of law-making powers between the federal parliament and the provincial legislatures. Civil liberties and human rights in Canada were addressed by common law cases and by the Bill of Rights. The Bill of Rights (Bill), though, had its limitations. It was focused only on federal legislation and could be amended by Parliament the same way any law passed by Parliament could be amended.

During the late 1960s and 1970s, Pierre Trudeau and others sought to repatriate our Constitution and add a charter of rights. Since this would affect the notion of Parliamentary supremacy, it was difficult to obtain consensus from the provinces. In June 1978, the federal government introduced Bill C-60 (the Constitutional Amendment Bill), which set out the government's proposed constitutional changes, and included the government's intention of giving Canada a new constitution before 1981 (Macklem and Bakan, page 729).

In 1982, Canada experienced a "constitutional renovation" (Macklem and Bakan, page 719). In addition to repatriating Canada's Constitution, we adopted the Charter. Some viewed and currently view this adoption as very positive; others are not so sure. Some of the resistance to the Charter was based on our British heritage. At the time, Britain did not have a written constitution, let alone a...