THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS: AN OVERVIEW

Abstract

Until now, fundamental rights have been judicially protected by the application of the rule of law to executive power and presumptions against legislative interference with private rights and property. This approach is not only reinforced by the Charter; a new era is inaugurated, one based, however, on an earlier higher law tradition. The Charter, while not having the impact of the United States Bill of Rights, will force a more direct approach to rights and lead us to seek guidance from foreign and extra legal sources. A new dynamic will develop in the relationship between the courts and the legislatures. As laws are declared invalid, legislative re-assessment or reformulation will follow, leading to further judicial evaluation. The change, undramatic at first, will gradually extend to state action and possibly common law rules, and enforcement will come both through declarations of invalidity and other appropriate remedies.