A Constitutional Bill of Rights — The Canadian Experience
| Date | 01 July 1997 |
| DOI | http://doi.org/10.1111/1468-2230.00095 |
| Author | Terence G. Ison |
| Published date | 01 July 1997 |
A Constitutional Bill of Rights — The Canadian
Experience
Terence G. Ison*
In 1982, Canada undertook a package of constitutional changes, including a
‘Charter of Rights and Freedoms.’ The package was enacted by Parliament at
Westminster in its last gasp as the Imperial Parliament in relation to Canada. The
Charter is similar to the American Bill of Rights, but since it is more recent, some
of us have in our memories a benchmark, albeit a fading one, against which we can
try to assess the changes that the Charter has brought. The position of Britain in the
European Community must have implications that are unfamiliar to me, so I will
try to describe the Canadian experience, leaving to the judgment of the reader the
extent to which it may be relevant in Britain.
Nobody knows the overall impact of the Charter. Reading the judgments and
doctrinal analysis of the developments so consumes our constitutional experts that
they have little time left for research on the real significance of it all. Political and
other pressures also militate against empirical research. Probably the best that
anyone can do in trying to explain the significance of the Charter is to provide
glimpses, drawn from one’s own research, reading and experience.
The Charter is in skeleton form, leaving the judges to develop the substantive
law. A Charter challenge can be made in any area of law, inviting the court or other
tribunal to invalidate legislation, regulations or executive action. In criminal
proceedings, Charter challenges are usually aimed at an acquittal, and many relate
to the processes of the court or the preceding investigation.
The content of the Charter is typical. For example: ‘Everyone has the right to
life, liberty and security of the person.’ But, as explained below, the Charter does
more to undermine than to promote the values that it purports to embody. The
Charter is counter-productive primarily because it rests upon a conception of the
state that is out of accord with contemporary reality. It perceives of a people whose
liberties may be threatened by the power of elected governments. It does not
reflect, or even accommodate, the perception of elected governments as the only
hope that most people have of protection from those who really wield power.
Sex discrimination
The point can be illustrated with regard to sex discrimination. Section 15(1) of the
Charter provides that: ‘Every individual is equal before and under the law and has
the right to the equal protection and equal benefit of the law without discrimination
and, in particular, without discrimination based on . .. sex.’ That sounds laudable,
The Modern Law Review Limited 1997 (MLR 60:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 499
* Osgoode Hall Law School, Canada.
This article is a revised version of a public lecture given in 1996 when a Benjamin Meaker Visiting
Professor at the University of Bristol.
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