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Former United States Attorney General Ramsey Clark wrote in the New York Times, “A right is not what someone gives you; but what no one can take away.” It is in this vein that a country drafts legislation to protect the rights of their inhabitants. In the United States there is the Bill of Rights, which consists of a preamble and the first ten amendments to the United States Constitution, 1787 . The Charter of Rights and Freedoms is the first part of the Canadian Constitution Act, 1982 . Both of these documents provide for the rights and freedoms that both countries see as inalienable to their respective populations.
This is where the similarity between them ends. These documents are vastly different. They were crafted in different centuries and therefore have different emphases. One key difference between the two documents is how they treat criminal law and the rights attached to an investigation. Another interesting comparison is what both documents do not discuss.
In Canada, if a person is detained they are required to be informed of their constitutional right to an attorney in accordance to Section 10(b) of the charter and SCR R vs. Therens 1985. The judgment reads:
“Where a detainee is required to provide evidence which may be incriminating and where refusal to comply is punishable as a criminal offence,… s. 10(b) imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel.”
In the United States, a detainee’s right to council falls under amendment six to the constitution . Chief Justice Warren’s report reads:
“The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination . . . As for the procedural safeguards to be employed . . . the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”
The difference between the details of these two ideas is great. The Charter makes the reading of the rights mandatory prior to anything that might be incriminating. This includes line ups, breathalyzers, etc . In the United States Miranda only has to be read once the person is custody, under interrogation or arrest. Miranda is the slang term given to the rights that the detainer is obliged to recite to the detainee before their detention. It begins with the lines made famous by cop shows, “You have the right to remain silent. Anything you do or say can and will be used against you in a court of law . . . ” In Canada, because we have no Fifth Amendment law the detainee does not need to be warned against self incrimination. Also, in Canada, after the recitation of the rights, the detainee needs to be asked if they understand and if they want to call a lawyer now.
These differences occur because of the nature of the two documents. The Bill of Rights was partially a reaction to anti-federalist complaints that the constitution gave to much power to the federal government. It was not written with the same forethought that was put into the Charter. Justice Lamer suggests that the differences emerge from the expansiveness that needs to be incorporated into a document of the charter variety .
This is seen in other sections of both documents as well. The fourth amendment states, “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Charter states in s. 8, “Everyone has the right to be secure against unreasonable search or seizure.” This provision of s. 8 is broad and conditional only to the provisions of s. 7 and the principles of fundamental justice. Is the body protected by this right? Does search include both body and place? The 8th amendment states, “nor cruel and unusual punishments inflicted.” S. 12 uses the word “subjected”. The difference is that S. 12 can be applied to matters other then criminal punishment, as seen in Rodriguez v. British Colombia  3. S.C.R.
The documents were written at very different times and for very different purposes. Out of this arise many differences.
The Bill of Rights has a long history entangled with that of the American Constitution. It was the anti-federalists attack on the American Constitution. Patrick Henry told the Virginia Convention, “What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances.” They demanded a more concise constitution that clearly laid out the rights of the people and the limitations of the government. James Madison wrote in his diary, “that such fundamental maxims of free Government would be a good ground for an appeal to the sense of community against potential oppression and would counteract the impulses of interest and passion.” The Bill of Rights that Madison passed was based heavily upon The Virginia Declaration of Rights.
The Virginia Declaration was a document that was written during the British occupation. Thomas Jefferson drew heavily upon it for The Declaration of Independence. Because it was written during the time of oppression of the British it very specifically counteracts the then current grievances. Is the issue of quartering a solider in your house at peace time such a pressing on that it is addressed in the Bill of Rights? There is no such provision in the Charter. Many of the rights guaranteed were those that were removed by the British. The British limited freedom of speech, freedom of assembly and freedom of the press. All of these rights are affirmed in the first amendment. To prevent revolution, the British limited the right to bear arms that is now protected in the second amendment.
The Charter of Rights and Freedoms was written almost two hundred years after the Bill of Rights. It replaced the relatively ineffective Bill of Rights, 1960 that only affected the laws made after its inception. It was also a bill so it could be altered by an Act of Parliament. The late seventies, early eighties were a time of development and change. The country was still reeling from the FLQ crisis and was troubled by the possibility of Quebec separating from the rest of Canada. When Pierre Treudeau wanted to repatriate the constitution from Britain, he encountered heavy opposition from the provinces, mainly Quebec. Tredeau then added the notwithstanding clause, or s. 33 of the charter to appease their concerns. What is seen as the Achilles heel, the flaw in the foundation of the charter is a result of the political pressures of the period in which it was written.
The time period also had a great effect on the scope and nature of the charter. During the Treudeau years society began a liberalization that is continuing today. The rights of the individual became more and more important over those of the community. This is seen to the rights granted in the Charter that were not in the Bill of Rights. Mobility rights and equality rights were not expressly provided for in the Bill of Rights.
The differences in the time periods have created documents with a very different focus. The American Bill of Rights protects the states against the tyranny and oppression of the federal government. The Charter of Rights and Freedoms protects individual rights and those of minority groups against subjugation by the majority.
The Bill of Rights and the Charter do not provide for many rights that we see as fundamental. Both documents do not mention the word privacy or provide for definitions of expectations of privacy . They let the courts determine that reflective of society. It took a series of landmark rulings in 1973 for the USSC to define what “a reasonable expectation of privacy ” is. The Canadian Supreme Court did the same with the first Charter challenges, including Hunter v. Southam Inc. and others. The Bill of Rights does not mention God, while the Charter begins with “Whereas Canada is founded upon the principles that recognize the supremacy of God and the rule of law.” This creates a complete separation of Church and State in the Bill of Rights, while providing for religious schools in the Charter.
The Charter does not provide a right to property, economic rights or labour rights. This means that the rights of unions to bargain collectively, the rights to compensation for confiscated property and the right to form unions are not protected except by act of parliament. In the Bill of Rights it says, “nor shall private property be taken for public use, without just compensation.”
The Charter has Section One, a legal tool by which the Supreme Court can limit the rights of the people. It provides that no right is absolute and is subject to reasonable limits that can be justified in a free and democratic society. The Bill of Rights has no such tool. In fact, the first amendment begins, “Congress shall make no law respecting . . .” This results in the USSC protecting the rights of Neo-Nazis to parade through a neighborhood of holocaust survivors and allowing for the formation of religious cults. The Charter also has s.33 as mentioned above.
The provinces have the right to opt out of federal laws. In Quebec, all laws begin, “Notwithstanding the Canadian Charter of Rights and Freedoms.” The Bill of Rights has no such section. This is a result of the American Civil War. During the Civil War, the South succeeded from the Union because they chose not to abide by the slavery laws. To prevent this from happening again, no such provision was included in the Bill of Rights.
The American Bill of Rights and The Canadian Charter of Rights and Freedoms are two documents that protect the rights and freedoms of the citizens and landed residents of their respective countries. This is where the clear similarities between the documents end. They deal with the ideas of legal and prosecutorial rights very differently. The documents differ greatly in the origins and focus. The documents are also at variance in what they do not include. Both documents play a fundamental role in protecting the ways in which we live our lives. Their differences and variances provide and define the differences between our two societies.
*Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven: Yale University Press, 1998.
*Beaudoin, Gerald A. The Canadian Charter of Rights and Freedoms. Toronto: Carswell, 1989.
*Douglas, Ann. The Complete Idiot’s Guide to Canda in the 80’s. Scarborough: Prentice-Hall Canada Inc., 1999.
*Dumbauld, Edward. The Bill of Rights and What It Means Today. Westport, Conn: Greenwood Press, 1979.
*Greene, Ian. The Charter of Rights. Toronto: J. Lorimer, 1989.
*MacCharles, Tonda. “Book ‘Em Dano! Canada’s Tough Arrest Rules.” The Toronto Star 15 April 2002.
*McKercher, William Russel. The U.S. Bill of Rights and the Canadian Charter of Rights and Freedoms. Toronto: Ontario Economic Council, 1983.
*Supreme Court of Canada, http://www.lexum.umontreal.ca/csc-scc/en/index.html University of Montreal.
*The Bill of Rights, http://www.nara.gov/exhall/charters/billrights/billmain.html National Archives and Record Administration.
*U.S. Supreme Court, Arizona v Miranda, http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=384&invol=436 Findlaw.