Quote[/b] ]The Charter, part of the Canadian Constitution which was repatriated to Canada on April 17, 1982, empowers Canadians to challenge any law, regulation or bureaucratic ruling created by government -- with a decision on its validity being left up to a judge.
At the same time, it was crafted with a careful series of checks and balances that allow governments to defend their legislation and decision. The pivotal one states that in any case where a judge has found a constitutional violation, government lawyers are then allowed to demonstrate why they believe the breach is justifiable "in a free and democratic society."
Some of the key rights protected under the Charter are:
* Legal rights, including the right to counsel and to be free of arbitrary imprisonment or unreasonable search and seizure.
* A broadly worded clause (Section 7), which guarantees the right to life, liberty and security of the person.
* Guarantees of fundamental freedoms such as free speech, expression, association and religion.
* Equality guarantees (Section 15), which protect against unfair discrimination. It includes an exemption for affirmative action programs that discriminate in order to ameliorate historical inequalities.
* Language rights, affirming the equality of French and English.
The Cananadian Charter grew out of a perception that courts are more accessible and transparent than the largely invisible and conflicted world of politicians who are more concerned about the next vote instead of justice and long-term impacts.
"Government is inaccessible and enormously self-protective," said John Dixon, president of the B.C. Civil Liberties Association, and a former senior adviser to the federal Minister of Justice. "The real political action involves small groups of mandarins working behind closed doors. But look at the courts in contrast. The process is utterly transparent and rational. Citizens get to hear the same evidence the judges do, and when judges make a decision, they have to provide coherent reasons."
As a result, the Supreme Court has helped equality litigants by opening the door wide for challenges to the way bureaucrats administer regulations in specific instances. Politicians are able to appease the electorate, all the while knowing the courts will use the Charter to fix them, if necessary.
Women and aboriginal people have won many favourable rulings and, after some initial disappointments, so has the gay and lesbian community.
Landmark Charter Cases For The Gay Community
Vriend v Alberta (1998): Delwin Vriend was fired by a small Christian college in Edmonton. He was prevented from using the Alberta Human Rights Commission to fight his firing because it did not include gays as a protected group. The Supreme Court "read in" gay rights to the list of rights protected under Alberta Human Rights legislation.
Judge Major alone dissented from the majority of Supreme Court judges, in saying Alberta ought to be allowed to legislate its own solution. But as he watched the political interplay, he began to have misgivings about the faith he had naively placed in politicians.
"I'm no longer so sure it [his opposing position] was a great idea," he told the Globe and Mail. "The reason . . . is that legislatures across the country have not been particularly active doing anything."
M v H (1999): The case involved an estranged lesbian couple and the fact that Ontario family law provisions exclude gays and homosexuals. The court ruled that by excluding these groups from support provisions, Ontario had continued a history of discrimination that undermined their human dignity.
