THE POLITICAL PURPOSES OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

  • PETER H RUSSELL
Keywords: Constitutional Law

Abstract

As we begin to perceive the effects of The Canadian Charter of Rights and Freedoms, it is important to bear in mind the political purposes for making this change in our Constitution. Two primary purposes can be indentified. For the political leaders who were the Charter's chief sponsors, national unity, was the main rationale for insisting on placing the Charter at the top of the constitutional reform agenda. The second purpose was the conviction that a Charter will better protect rights and freedoms. Belief in this purpose is the main explanation for widespread public support of the Charter. National unity, it was thought, would be strengthened by the Charter's symbolic effects and particrdarly by its provisions concerning mobility and language rights. An examination of these expectations suggests that they were somewhat unrealistic. The Charter's most important unifying consequences will more likely flow from a dimension of entrenching rights about which the Charter's political sponsors were, for the most part, silent-namely, the national policy making role the Supreme Court will assume as the final arbiter of the Charter. In believing the second purpose, the Canadian public were victims of false advertising. Fundamental rights and freedoms are not zero-sum entities which citizens either possess in their entirety or not at all. In all liberal democracies, limits are placed on the extent to which fundamental rights and freedoms are enjoyed. The Charter's principle effect is to change the way in which decisions about these limits are made. There is no guarantee that this new decision-making system, in which judicial review plays a central role, will result in better or even in more liberal decisions about these limits. Now that the Charter is in force, Canadians must overcome the baby talk used to sell it and learn to address the potentialities of the Charter more realistically.

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Published
1983-03-01
Section
Legal Commentary