The Charter of Rights and Freedom and its Affect on Canada
The Charter of Rights and Freedom and its Affect on Canada
The Charter of Rights and Freedoms is a bill of rights granted constitutional status that was introduced in the Constitution Act of 1982 by Prime Minister Pierre Elliot Trudeau. The Constitution Act is also known as the repatriation of the Canadian Constitution. The Charter had several purposes; the first is “to outline and guarantee the political rights of Canadian citizens, as well as the civil rights of anyone who is residing on the territory of Canada” (The Canadian Charter. 1).
Secondly, “It balances the rights of legislatures and courts through the ‘notwithstanding’ clause, which gives the federal and provincial parliaments limited powers to override court decisions “, while section 2 of the bill enshrines the freedom of the press, allowing the media to release controversial reports without fear of the state (Ibbitson. 2012). Thirdly, it criminalized discrimination in society, government rulings and the judicial system and provides a set of ethical principles for all Canadians to follow, while promoting equality throughout the country.
Social discrimination was widespread in Canada at the turn of the 20th Century. Many groups were discriminated against such as minorities and women. This was evident through the introduction of Clifford Sifton’s head tax, the “enemy aliens” and unbalanced gender equality between men and women. The first step in any change is to identify the problem. During the Holocaust of WWII the discrimination of Jewish people led to a mass genocide of 6 million people. After this affair it was realized that boundaries must be put in place to insure that basic human rights are respected.
It was this idea that gave birth to the UN Declaration of Human Rights in 1948. In Canada the declaration paved paths for more government action regarding social and political discrimination, an example being the predecessor of the Charter, the Canadian Bill of Rights of 1960. This bill was introduced by Prime Minister John Diefenbaker and granted similar rights to the citizens of Canada. The difference between the Charter of Rights and Freedoms and the Bill, is that the Bill of Rights could be contested by the government and judicial system whenever anyone sees fit, which gave room for discrimination in government and court rulings.
The catalyst to the creation of the Charter was the re-election of Pierre Trudeau and the Quebec Referendum. Prime Minister Trudeau was Canada’s first socialist prime minister, he was heavily influenced by the socialist European culture from the years he spent studying there. Trudeau’s most famous saying was a “Just Society”. “The Just Society will be a united Canada, united because all of its citizens will be actively involved in the development of a country where equality of opportunity is ensured and individuals are permitted to fulfill themselves in the fashion they judge best” (Trudeau. 968). During the Quebec Referendum when Quebec’s separatist movement was at its peak, the repatriation of the Canadian Constitution and the enactment of French language and French education rights (which is included in the Charter) were pieces of his platform to halt the referendum and part of his plan for a “Just Society”. After the referendum was rejected Trudeau kept true to his word and appealed the Constitution and enshrined the Charter of Rights and Freedom within it.
The Charter of Rights and Freedom was a defining moment in Canada’s history as it protected women and homosexuals from discrimination and allowed them to establish an identity. Its creation also shows our country’s commitment to equality, human rights and social justice. The Charter changed Canada’s view on sexuality, gender equality and homophobia; it paved a path for the second wave of the feminist movement, helped legalize abortion, removed barriers for gay marriage and completely redefined the definition of marriage throughout Canada.
Abortion was an extremely controversial topic throughout the 1900’s and the reason why free abortion is available in this country is because of the Charter of Rights and Freedoms. Before the 1969 and the passing of the Criminal Law Amendment Act, abortion was considered a criminal offense and no access to it was allowed. The right to having an abortion also brought along questions on gender roles and equality; as men were not restricted to what they could or could not do with their bodies.
The catalyst to the Free Abortion Movement was the Sexual Revolution of the 1960’s in the USA, which due to their proximity to Canada also had an effect on our society. The revolution was the beginning to contraception, the acceptance of casual sex and sexual liberation. Along with these boundaries breaking changes also brought the legalization of abortion. The biggest push towards free abortion from within our country was the work of a man named Henry Morgentaler. Dr. Henry Morgentaler was a general practitioner in Montreal, who specialized in family planning.
He was one of the first Canadian doctors to prescribe birth control and perform sterilization. In 1967, he presented a case before the House of Common Health and Welfare regarding illegal abortions and women’s rights to safe abortion, but was swiftly dismissed. The public reacted quickly to his stance on this issue, and he began to receive requests from desperate women to perform abortions. Morgentaler initially responded with a sympathetic “no”, but after he realized the life-risking extent that these women were willing to go to for an abortion, he chose personal values over civil obedience and began performing illegal abortions.
His bravery and determination was the catalyst to the second wave of the feminist movement and kick started the right to legal abortions for all women in Canada. The section of the Charter of Rights and Freedom that was most significant to the Free Abortion Movement was section 7. Section 7 of the Charter states “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” (The Charter of Rights and Freedoms. 982). Before the Charter, in 1969 a law was passed that stated “a child can only be aborted if the life or health of a woman was threatened” and must be verified by a three-doctor hospital committee (Egan. 1998). But after the creation of the charter which granted woman the right to life or to make choices, such as “whether a woman had made a choice to get pregnant, continue a pregnancy, or end a pregnancy, or, framed differently, to have an abortion, or not have an abortion” (Downie. 2008).
If the woman in question had not made the decision to become pregnant or even consented to the act of intercourse, then denying her right to having an abortion would violate the Charter and her right to live. Secondly, by limiting a woman access to medical services and forcing her to carry and support a fetus is an invasion of her right to security and a violation of the Charter. Thirdly, one of the reasons abortion is illegalized in many countries is because in many religions the act of protecting the fetus is sacred, causing many religious government fficers to implement bias laws against allowing abortion due to their beliefs. The charter states that all people have the freedom of belief and religion; if the individual does not believe in the practice of protecting the fetus then they should be allowed to make their decision accordingly. Lastly, the final verdict given by a judge on the Morgentaler case was: “The decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience. I do not think there is or can be any dispute about that.
The question is: whose conscience? Is the conscience of the woman to be paramount or the conscience of the state? I believe, for the reasons I gave in discussing the right to liberty, that in a free and democratic society it must be the conscience of the individual. ” (Wilson. 1988) If the right to liberty was not given then the outcome of this significant case would be much different and women may have never been granted the right to free abortion. The changes that the Charter brought to the lives of pregnant woman were paramount.
It not only allowed them to make choices with their body, but it also brought them closer in gender equality with men (as they were not longer restricted in bodily integrity) and paved a path for future changes in the lives of women. Until the re-election of socialist Prime Minister Pierre Trudeau in 1980 and enactment the Charter of Rights and Freedoms, homophobia was very common in Canada at the turn of the 20th century. Before 1970, homosexuality was seen as a criminal offense and anyone accused of homosexual acts was charged as a sexual offender.
Similarly to the Free Abortion movement catalyst to the Gay Rights Movement was also the Sexual Revolution of the 1960’s and the re-election of Pierre Trudeau. Likewise to Morgentaler, there is also an extremely significant person to the rise of homosexual rights, Everett George Klippert. Klippert was mistakenly suspected of arson and was detained by the RCMP in August 1965. During his questioning he admitted that he was homosexual and had conducted several sexual acts with throughout the last 24 years.
Though it was proven that Klippert was not involved in the arsonist case, the court because of his sexual activities had charged him with 6 counts of “gross indecency”. This sentence was seen as extremely unfair and cruel. Trudeau, who was the Prime Minister at the time, responded with this statement: “Take this thing on homosexuality, I think the view we take here is that there’s no place for the state in the bedrooms of the nation, and I think what’s done in private between adults doesn’t concern the Criminal Code. When it becomes public this is a different matter…” (Trudeau. 967) And within six weeks of this statement Trudeau had created and passed the Criminal Law Amendment Act, which decriminalized homosexuality. This act along with the Charter of Rights and Freedom gave Canadians the gift of same-sex marriage. After the acknowledgement of same-sex marriage in 1969, it was pointed out that the traditional “one man/one woman” biological requirement was not fulfilled. This difference led to the Canadian government denying same-sex partners the same benefits of the law as heterosexual partners.
But later this is revoked, as the term “minorities” expressed in the Charter of Rights and Freedoms extends to include analogous minorities therefore all federal and provincial discrimination against same-sex couples must be overwritten. Secondly, “The Charter of Rights and Freedoms introduced in Canada in 1982 prohibits discrimination against homosexual couples on the basis of ‘sexual orientation’ to counter the Canadian federal law which denies marital status to the group, thus depriving them of the federal privileges allowed to heterosexuals”(Findlay. 5). Later in 1999 because of sexual orientation becoming a form of discrimination, the Supreme Court of Canada pronounced that same-sex partners now legally have the same rights and benefits as common-law couples. Lastly, at the turn of the 20th century one of the most dominant religions in Canada was Christianity. The Christian religion did not accept the idea of homosexuality, and because this belief was so dominant at the time, it created bias laws and discriminated against gay citizens of Canada.
Until the creation of the Charter which granted the right to religion and personal beliefs, there was no way to argue against this religious discrimination. Finally in 2003 the Ontario Court of Appeal stated that the exclusion of same-sex couples from the definition of marriage violated equality rights under the Charter. Without the Charter of Rights and Freedoms, homosexuals would not have the rights and acceptance in society as they do in the present day. The Charter completely redefined the meaning of marriage and gave homosexuals the ability to bind themselves to their loved ones with not only their body and soul, but also with vows and aws. The Charter of Rights and Freedoms was a defining moment in Canada’s history because it protected women and homosexuals from discrimination and gave them several fundamental freedoms that they did not possess before. Women finally gained the right to control their own bodies, and homosexuals received the freedom to love who they wish, without hiding it. The Charter really placed Canada on the map as a place of freedom and expression, perhaps even more so than our neighbor “The Land of the Free”. It geared Canada on a path to what it is today, a place of diversity, tolerance and the land of the “The True North Strong and Free. “
University/College: University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
Date: 20 October 2016
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