Bill of rights vs. Canadian charter
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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 of 1781, which consists of a preamble and the first ten amendments to the United States Constitution, 1787. In Canada there is the Charter of Rights and Freedoms, which is the first part of the Canadian Constitution Act, 1982. Both of these documents provide for the rights and freedoms for their respective populations. These documents are vastly different, but also contain several similarties. Thou both excellent documents, it is in my contention, however, that the Bill of Rights is far superior, more significant and efficiently exceeds the Charter of Rights and Freedoms.
The Bill of Rights has a long history entangled with that of the American Constitution. The first Congress has achieved more than any other congress in American history, they not only have the credits of a successful organization of the government, of law, administration, and defense but the enactment of the American Bill of Rights. The original Constitution of 1787 contained several provisions of major significance for civil liberties, however did not contain a specific bill of rights. This failure to incorporate a bill of rights by the framers of the constitution was not a sign of resentment or lack of concern to the rights of man, but rather their certainty that particular guarantees of rights was unnecessary. However this did not satisfy some states, who deeply demanded for solemn assurances that the new government would not consent to exercise tyranny, therefore a debate between the Federalist and Anti-Federalist began.
The Federalist were who argued for a strong national government to provide order and protect rights of people and claimed that the bill of rights was unnecessary. On the other hand the Anti- Federalist argued for a weak national government and wanted to add the Bill of Rights to protect the people against abuses of power. A number of states had ratified the Constitution with the understanding that it would be amended by the addition of the Bill of Rights. A Virginian, James Madison who’s known as the Father of the Constitution and principle draftsman of the first ten amendments proposed The Bill of Rights to congress. The Bill of Rights is the name given to the first ten amendments of the Constitution of the United States adopted in, 1791. These amendments guarantee certain basic or fundamental rights and liberties, that support democracy and are essential to justice of the people against the power of the government. Former U.S. Attorney General Ramsey Clark wrote in the New York Times “A right is not what someone gives you, but what on one can take away.” This is way the rights and freedoms in the Bill of Rights are considered, inalienable and cannot be taken away.
These amendments, more precisely the first eight of them, denote certain basic freedoms and procedural safeguards which the individual may not be deprived by government power. The first ten amendments are therefore, virtually contemporaneous with the Constitution itself. These specified freedoms and protections are the core of American civil liberty and provide for the constitutional basis for protection of the rights of an individual.
The provisions of the 1st Amendment are freedoms of religion, speech, press, assembly, and petition; the 2nd Amendment protects the rights to possess of firearms; the 3rd Amendment declares that the government may not require people to house soldiers during peacetime; the 4th Amendment prohibits unreasonable searches and seizures; the 5th Amendment prohibits against double jeopardy and self-incrimination; no taking of life, liberty, or property without due process of law; requirement of fair compensation when private property is taken for public use; the 6th Amendment procedural safeguards in criminal prosecutions; the 7th Amendment guarantees the right to trail by jury in civil cases; the 8th Amendment prohibits against excessive bail and cruel and unusual punishments; 9th Amendment declares that rights not mentioned in the Constitution belong to the people; and the 10th Amendment declares that power not given to national government belong to the states or to the people. Of particular importance are the provision of Amendments 11-27 that were ratified later. In the 200 years since the Bill of Rights was added to the Constitution the rights of people have been expanded by court decisions and by other amendments. The courts have also, held civil rights as defined in the Bill of Rights and other amendments are relative, not absolute.
The Canadian Charter of Rights and Freedoms is part of the Constitution of Canada as set forth in the Constitution Act proclaimed by Queen Elizabeth II in Ottawa on April 17, 1982. The Charter of Rights and Freedoms was written almost two hundred years after the American Bill of Rights. It replaced and superseded the relatively ineffective Bill of Rights, 1960 that only affected the laws made after its inception and applies only to the Federal government. Certain rights weren’t expressly provided for in the Canadian Bill of Rights such as Mobility rights and Equality rights. It was also a bill so it could be altered by an Act of Parliament. The Charter is a binding on both the federal government and provincial, unlike the Bill of Rights.
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.
The Canadian Charter of Rights and Freedoms sets forth the fundamental freedoms of conscience. In Section 1 of the Charter, it clearly affirms that the rights and freedoms stated are to be reasonably limited; in S. 2 there are rights and freedoms of thought, belief, opinion, and expression, including freedom of the press and other communications media; of peaceful assembly; and of association. In S. 3-5 it states the democratic right of citizens to vote, the maximum duration of legislative bodies, and the requirements for the annual sitting of Parliament and other legislative bodies. Section 6 Mobility rights of an individual to move and gain a living. In S. 7- 14 it states Legal rights to life, liberty, and security of a person and other provision under being detained and cruel and unauslly punishments. Section 15 affirms Equality Rights of individuals before law and their right to equal protection and benefits of the law. In other provisions the Charter sets forth the rights of the use of English and French as the official languages of Canada; minority-language educational rights and general rights.
The American Bill of Rights and the Canadian Charter of Rights and Freedoms are two documents that protect the rights and freedoms of citizens and landed residents of their respected countries. The list of rights protected in each country are similar, both contain democratic rights and freedoms, the right to life and liberty. For example, the 9th Amendment of the Bill of Rights and Article 53 of the Charter are clearly meant to calm fears about any diminishment of rights retained by the people. United State’s and Canada’s Constitution were found to be stronger, shortly after adding the Bill of Rights in the United States and the Charter of Rights and Freedoms in Canada. Both documents play a fundamental role in protecting the way in which we live our lives.
This is where the clear similarities between the documents end. These documents are vastly different. They were crafted in different centuries and therefore have different emphases. Their variances provide and define the differences between our two societies. The documents differ greatly in the organ and focus. One key different between the two is how they treat or criminal law and the rights attached to an investigation. They also deal with the ideas of legal and prosecutional rights very differently. Another difference is in the structure of our bill of rights. Canada’s is much arbiter supreme more like the European bills of rights and Charters, although not identical, than the American. The way that justices are appointed is a very political process in the US. However in Canada, appointing of superior court justices are done generally by the cabinet, and appointed chief justices and members of the Supreme Court are done by the prime minister.
It’s less political than the US because the Prime Minister or the cabinet can simply appoint whomever they like and no one can stop them, nor do they have to get the approval of others. There are distinctions that maybe of importances, for example, the Charter seems to provide greater opportunities to assert collective minority rights than does the U.S. Bill of Rights. On the other hand, the Charter does not prohibit the establishment of religion, nor does it protect property rights explicitly. Professor Hugg (Canadian Charter of Rights and Freedoms, 1989, p. 16.) said “…the omission of property rights from the list of protected rights is certainly significant. …there is no requirement of Canadian constitutional law that a compulsory taking of property be effected by a fair procedure or that it be accompanied by fair compensation to the owner.” These differences cause a great deal of changes between these documents that are of significant value.
The American Bill of Rights is far superior, more significant and efficiently exceeds the Canadian Charter of Rights and Freedoms. Although these documents are similar in some cases the Charter yet has to face and encounter the challenges, that the Bill of Right already has; to become a stable, efficient and effective document for the past 200 years. The Charter is a new baby that has, learned how to walk on its own two feet; begins school; learned all the basics; has faced high school; is competitive to get into university; and now has to get ready to be beleaguered and challenge, true and hard life out there in the world. But the charter has just yet began its journey through the real life which is the fight to become an effective source in the eyes of the people it nurtures. There are clear examples of which I will discuss, that explain how the charter after two decades has to change to meet the needs and provide complete justice to the and has to fully justify its rights that are listed.
For many women, the Charter will not be a success until it is interpreted and applied in a way that a meaningfully addressed the growing social and economic inequalities they face in Canada. Thou the right to free expression, equality and freedom of association mean little to women who’s rights have been ignored by courts and legislators. The success of pending Charter claims for economic and social rights (rights to adequate food, shelter and health care for example) will and can tell whether the Charter is really something to be cheered. In February and March of 1981, 1300 women came together on Ottawa to demand stronger provisions for women’s equality in the draft Charter, ultimately leading to the inclusion of section 28 whicj in it guaranteed equal rights to male and female.
Yet a claim brought by a Quebec women named Louise Gosselin says that the “20 year old Charter has some considerable room to grow.” She is waiting to hear whether the Supreme Court of Canada will change a Quebec court decision, which slashed her welfare chech in 1988 from $466 per month to $163 per month. They thought it was reasonable restriction of her right to equality and is no violation to her rights to security of the person. The National Association if Women and the Law, supports Gosseline and said “that the Quebec regulation exacerbates women’s existing inequality, poverty and the vulnerability to the sexual and the racial violence and discrimination.” So what is the real issue of the Gosseline case; it’s the Charter itself. The nature of its rights and the limits of its ability to protect vulnerable individuals and groups.
Twenty years later where is the Charter? On its face the Charter represents an extraordinary shift in the power balance between the government and the people. However for women and other disadvantaged groups the impact was less immediate. A win in court doesn’t necessarily mean or result in comprehensive changes right then. Original women still face rights obstacles, immigrants and refugee women still face biased officials who have great deal of discretion, still in two decades the courts need to take women’s and other minority to account.
Ottawa made qualifying for unemployment insurance more difficult, especially for woman in part-time employment or who leave the paid work force to give birth or take care for children. However the government says these cuts were needed to get our deficits under control and to compete in a global market. Nevertheless, it is women who are paying the price for these economic policies. These policies can be approached in different direction and avoid these disturbances for women. Kate Stepherson, co-chain of LEAFS is National Legal Committee, says” women are frequently the target of restrictions and cuts to social programs. Such cuts and restrictions threaten women’s security of the person and impede women’s equality and are, thus clearly subject to challenge under the Charter. On the other hand Canadian courts have maintained those social and economic rights are not rights at all. The government has a great deal of power that should be exercised to avoid any harm, conflict and disorder for anyone or group of people. What the government and the media often pass off, as inevitable economic consequences are actually serious violations of our rights. If the rights are granted by looking at certain people or groups then they aren’t rights, they are then privileges and preferences.
Thus, the US Bill of Rights has justified its rights for women and other disadvantaged minority groups about 100 years ago. Therefore, it is obvious that rights have been protected strongly by the Bill of Rights for men, women and the minority group for many years. Which causes the rights and freedom to be accurate and stable for any individual in the US. In the case Brown vs. Board of Education of Topeka, Kansas, only after a year Warren became chief justice, he presided over the court as it reached a landmark decision in the case. In which the decision was that separate educational facilities for whites and African Americans are essentially unequal. Linda Brown, a young African American student requested the right to attend a local all-white school in the Topeka neighborhood, rather then attend an all black school that was further away.
The National Association for Advancements of colored people joined the case and appealed it all the way to the Supreme Court. In a unanimous decision, the court held that in the field of public education, “doctrine of separate but equal had no place.” The Brown case opened the doors desegregation. Which can be directly justified by the 13th (abolition of slavery) and 15th (voting rights for African American men). Women rights have been developed and protected since the early 1900’s by the progress made by the women’s rights movements and the government. Women gained the right to vote in 1920 by the19th amendment which stated “voting rights for women.” This gave them the right to an abortion in 1992 and several other rights that leave them just as equal as any man or other individual under the law.
The Charter does not include any specific saying that protects the rights of the property of a person. It is essential to our lives that our property be protected. Lawyers, judges, legislative, and constitutional experts have confirmed and verified repetitively that Canadians have no safeguard or protection for there property rights. The government can easily take away private property without reimbursement because the law gives permission or allows passing legislation that takes away property. Professor Hogg, (Constitutional Law of Canada, Citation 44.9-page 1030) says “The omission of property rights from section 7 [of the Charter] greatly reduces it scope. It means that the section 7 affords no guarantee of compensation or even a fair procedure for the taking of property by the government. It means that section 7 affords no guarantee of fair treatment by courts, tribunals, or officials with power over purely economic interests of individuals or corporations.” And he continues ” The product is a section 7 in which liberty must be interpreted as not including property, as not including freedom of contract, and, in short, as not including economic liberty.”
There isn’t a section in the Charter of Rights and Freedoms that includes property rights. Hence, the USA Bill of Rights specifically and fully protects property rights from the governments and individuals. This is seen in the 5th amendment of the Bill of Rights, which states “guarantee that no may be deprived of life, liberty or property.” Clear of all acknowledgements, the true meaning of rights has been distorted and prevented by the Charter, the court and legislatures.
The Charter of Rights and Freedoms will eventually become as glowing and successful as the Bill of Rights, but for now it is only 20 years old compared to 200 years that is nothing. The future will only perceive what the Charter will embrace for the country and what impact will it have in helping to shape civilians lives. Now, more then ever it is time for the Charter of Rights and Freedoms to grow up and address the most pressing human rights issue for the people. As of now the Bill of Rights has proven to be far superior, more significant and efficiently exceeds the Charter of Rights and Freedoms.