Fundamental Freedoms - The Charter of Rights and Freedoms
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History of the Charter of Rights and Freedoms
Queen Elizabeth the Second and Pierre Trudea signing the Constitution

The History of the Charter

Canada's original Constitution, the British North America Act, was passed in 1867 by British Parliament. This Act, also known as the Constitution Act, 1867, founded Canada as a nation. It made elected governments the highest political and legal institutions in the country. The Constitution distributed power between the federal and provincial governments. Unlike the United States Constitution, Canada's Constitution did not have a "Bill of Rights" that governments had to follow.

In 1960, the federal government passed the Canadian Bill of Rights. This law statute was not part of the Constitution. It had no more power than any other law. The Bill spoke of fundamental freedoms, legal rights and equality before the law. But if a law itself was discriminatory, the Bill of Rights was generally not helpful. As well, the Bill only applied to federal, not provincial laws.

Because Canada's original Constitution was an Act of British Parliament, it could only be changed by Britain. For many years, Canada's Prime Ministers had been looking to "bring the constitution home." Prime Minister Pierre Trudeau also wanted to include a Charter of Rights in the Constitution.

The Charter was significantly inspired by documents such as the 1948 United Nations Universal Declaration of Human Rights. Other international influences included the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, and the 1966 International Covenant on Civil and Political Rights.

In the fall of 1980, the Canadian government set up a special all-party committee to hear what people had to say about a suggested Charter. With televised hearings, the committee listened to over 300 presentations from women, Aboriginal people, people with disabilities, ethnic and cultural minorities, and others. The committee also considered 1200 written submissions about the Charter. From this, the committee made 123 recommendations to improve the Charter - over half are in the final document.

It was difficult for the provinces to agree to changes to the Constitution. On the night of November 4, 1981, in the kitchen of the Ottawa Chateau Laurier hotel, then Federal Justice Minister Jean Chrétien and the Attorneys General from Saskatchewan and Ontario, Roy Romanow and Roy McMurtry, came up with a plan - popularly referred to as the "Kitchen Accord." The plan gave provinces a way of temporarily avoiding some parts of the Charter (see Clauses and Provisions - the section 33 "notwithstanding clause"). This led to stronger support from the provinces and opened the way for a Constitution that included a Charter of Rights and Freedoms.

The Charter is a part of the Constitution Act, 1982; all of which is in the Canada Act, 1982. Receiving the approval of the Britain for the last time, on April 17, 1982 in Ottawa, Queen Elizabeth II signed the Canada Act, 1982. This gave Canada control over its Constitution. The guarantee of rights and freedoms in the Charter became part of the supreme law of the land.

The equality rights section of the Charter was delayed until April 17, 1985. This gave governments time to update laws to meet equality requirements.

Having a Charter of Rights and Freedoms in our Constitution has brought Canada in line with other liberal democracies in the world, all of whom have bills of rights that can be enforced by the courts.

Eugene Forsey, 1967. The British North America Act was designed by the British overlords; from which it follows, of course, that wemust now scrap it and give ourselves a homemade one.  (Image from the William Notman and Sons collection of Library and Archives Canada, PA 127235)
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