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Posted: July 17th, 2022
Analysis of the Canadian Charter of Rights and Freedoms
The rights set forth in “The Canadian Charter of Rights and Freedoms” are all of paramount importance in a democratic country such as Canada. However, the implementation and interpretation of the C. C. R. F. is fundamentally flawed. The ambiguity of certain sections allow for a vast range of interpretations by the Supreme Court justices, the unelected judiciary brach has the power to fundamentally alter the Canadian Criminal code without the consent of the legislative brach, and the legislative branch has the power to overrule most parts of the Charter under the principle of legislative supremacy.
These principles effectively render the charter useless is serving its purpose. The Charter itself is a short document with only very general statements about the nature of the rights and freedoms it provides. Under section 2(a) of the C. C. R. F all Canadian citizens are granted the right to “freedom of conscience and religion”. However, this can present itself to be difficult in a multicultural society such as Canada, thus, religious beliefs and more importantly their sincerity can become difficult to asses.
Also, religious beliefs may come into conflict with other fundamental rights. In the case of A. C. v. Manitoba (Director of Child and Family Services), a Jehovah’s Witness couple refused blood transfusions for their 14-year-old daughter after doctors decided they were necessary. The child was made a ward of the state in order to administer blood transfusions. The Supreme Court of Canada had do determine wether the child’s right to life or the parent’s religious freedom was of greater importance. The court ruled that this was a legitimate limitation on religious freedom.
Furthermore, the freedom of the judiciary brach to set precedents equal in importance to the law, especially on the controversial issues mentioned in the C. C. R. F. , actually diminishes Canada’s democratic nature. Because they are not elected, judges do not have to be sensitive to the will of the electorate, thus limiting democracy. The Supreme Court has made a number of controversial decisions without the consultation of any legislative body or Canadian citizens. One of the most significant being R. v. Morgentaler, which effectively made abortion legal in Canada.
The court ruled that “The abortion provision in the Criminal Code violated the right of women, under section 7 of the charter to “security of the Person”. However, a 2010 Angus Reid poll found that only 40% of Canadians think abortion should be permitted. The Supreme Court of Canada fundamentally altered the Canadian Criminal Code and clearly acted against the will of most Canadians. However, to ensure “legislative supremacy”, Section 33 was written into the C. C. R. F. Section 33 states that “Parliament or the legislature of a province may expressly . . that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15. ” Thus, should they chose the Federal of Provincial governments can suspend many of the rights guaranteed in the C. C. R. F. One recent example is when In March, 2000, the Alberta Legislature passed Bill 202, which amended the province’s Marriage Act to include an opposite-sex-only definition of marriage as well as the notwithstanding clause in order to insulate the definition from Charter challenges.
It was later overruled by the Supreme Court of Canada, however, under a different Supreme Court Bill 202 might have prevailed. In conclusion, the ambiguity of the C. C. R. F allow for different interpretations, the judiciary brach has the power to alter the Criminal Code without the consent of the legislative brach, and the legislative branch has the power to overrule most parts of the Charter under the principle of “legislative supremacy”. These principles effectively render the charter useless is serving its purpose of ensuring a fair and just country for Canadians.
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