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A Constitutional Bill of Rights — The Canadian Experience
Author(s) -
Ison Terence G.
Publication year - 1997
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/1468-2230.00095
Subject(s) - citation , constitutional law , law , political science
In 1982, Canada undertook a package of constitutional changes, including a 'Charter of Rights and Freedoms.' The package was enacted by Parliament at Westminster in its last gasp as the Imperial Parliament in relation to Canada. The Charter is similar to the American Bill of Rights, but since it is more recent, some of us have in our memories a benchmark, albeit a fading one, against which we can try to assess the changes that the Charter has brought. The position of Britain in the European Community must have implications that are unfamiliar to me, so I will try to describe the Canadian experience, leaving to the judgment of the reader the extent to which it may be relevant in Britain. Nobody knows the overall impact of the Charter. Reading the judgments and doctrinal analysis of the developments so consumes our constitutional experts that they have little time left for research on the real significance of it all. Political and other pressures also militate against empirical research. Probably the best that anyone can do in trying to explain the significance of the Charter is to provide glimpses, drawn from one's own research, reading and experience. The Charter is in skeleton form, leaving the judges to develop the substantive law. A Charter challenge can be made in any area of law, inviting the court or other tribunal to invalidate legislation, regulations or executive action. In criminal proceedings, Charter challenges are usually aimed at an acquittal, and many relate to the processes of the court or the preceding investigation. The content of the Charter is typical. For example: 'Everyone has the right to life, liberty and security of the person.' But, as explained below, the Charter does more to undermine than to promote the values that it purports to embody. The Charter is counter-productive primarily because it rests upon a conception of the state that is out of accord with contemporary reality. It perceives of a people whose liberties may be threatened by the power of elected governments. It does not reflect, or even accommodate, the perception of elected governments as the only hope that most people have of protection from those who really wield power.