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The Canadian Charter of Rights and Freedoms has influenced the change in the political role of the courts in the state and society. In this context, important issues of constitutional theory and practice in Canada are raised. It is important to note that the success of the Charter was due to the fact that all social forces, including both political institutions and private actors, came out in a consolidated manner for the reform of a system based on majoritarian politics and the rule of law.
Analysis and Impact of the Canadian Charter of Rights and Freedoms
The year 2022 marks the 40th anniversary of the adoption of the Canadian Charter of Rights and Freedoms. This document is of great historical importance both for the development of Canadian statehood and for the formation of the Canadian nation. It is no coincidence that noting the “transformative impact” of the Charter on all aspects of the life of Canadians, in the literature, the corresponding periods are symbolically denoted “before the Charter” and “after the Charter”, and the latter, in addition, is often referred to as the “era of the Charter”, entry into strength, "coming” (“Guide to the Canadian Charter of Rights and Freedoms”). It is, thus, evident that the Charter has great importance to Canada and its approach to democracy and the vision of a thriving society.
Both ordinary Canadians and legal professionals alike view the adoption of the Charter as a revolutionary event in Canadian history. In a certain sense, this is true, since the Charter, as part of the 1982 constitutional act, meant the "patriation" of the Canadian constitution, the recognition of its supremacy. Antonio Lamer, being the Chief Justice, speaking of the Charter as a revolution, metaphorically compared it with some of the greatest achievements of humankind, such as the invention of penicillin or laser (“Guide to the Canadian Charter of Rights and Freedoms”). While the comparison is evidently slightly exaggerated, the legal shift that the Charter offered was of great significance to Canada indeed.
The international significance of the Charter extends far beyond the national borders of Canada. The Canadian Charter, along with the South African Bill of Rights, is considered an example of constitutional documents of this kind of a new generation, which, taking into account all the international legal achievements in the field of human rights, show an example of a successful combination of universal features with a nationally special one. This demonstrates innovations in the field of constitutional consolidation of rights and freedoms in a developed democratic society (“Guide to the Canadian Charter of Rights and Freedoms”). By implementing the Charter, thus, Canada has officially put itself on the list of some of the most democratic and liberal countries, such as the United States.
The Charter has received almost universal acclaim from some of the most respected legal scholars of the world. In his work dedicated to the 25th anniversary of the Charter implementation, Professor William Schabas provides that the Charter is a document unique to Canada aimed to solve the unique issues present in the country. This undoubtedly supports its effectiveness. He further adds that one of the most democratic moves that the Canadian government made was the liberalization of bilingual minorities, which primarily concerned the Native American peoples of Canada. Schabas remarks on this as on one of the fundamental principles of justice in the country (Schabas 297-298). Such a liberalization was even somewhat unusual for Canada as the government frequently faced strong societal resistance regarding the country’s native peoples policy.
The influence of Canadian political culture cannot but affect the composition of the modern court. For example, at present, the Canadian Supreme Court is more “democratic” than the courts of final instance in other jurisdictions, due to the diversity of its composition (according to various indicators). For the first time, the Charter elevated the principle of equality of rights to the constitutional level. In his contemporary article, Rainer Knopff (1987) assessed the effects of the Charter in comparison with the judicial system dominating in Canada in previous years. He implied that Canada had big issues with providing its citizen, especially the minorities, equal rights on the Constitutional level (272). Hence, many citizens of Canada did not have the rights equal to the majority of the white population constitutionally, i.e. by default, just because of who they were in regards to race or ethnic heritage. The Canadian Charter of Rights and Freedoms has managed to overturn that injustice quite effectively from the beginning of its implementation.
The Canadian Charter of Rights and Freedoms of 1982, as a product of Canadian society, embodies all the tensions and contradictions of the Canadian political system, judicial control and parliamentary sovereignty, individual and group rights, federalism, and national unity. However, Canadians now have an arsenal of rights and remedies in their hands that, prior to the adoption of the Charter, were simply unthinkable and unenforceable in a court of law.
"Guide To The Canadian Charter Of Rights And Freedoms". Government Of Canada, 2022, https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html.
Knopff, Rainer. “What Do Constitutional Equality Rights Protect Canadians Against?” Canadian Journal of Political Science / Revue Canadienne de Science Politique, vol. 20, no. 2, 1987, pp. 265–86, http://www.jstor.org/stable/3228703. Accessed 19 Apr. 2022.
Schabas, William. International Human Rights Law And The Canadian Charter. Carswell, 1996.
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