Four decades after it was proclaimed Canada's Charter of Rights continues to be violated by governments and politicians. This is unacceptable and needs to change.

By Fareed Khan

Forty years ago on April 17th, before a nationally televised audience, Canadians watched as Queen Elizabeth II and then Prime Minister Pierre Trudeau put their signatures on the Canadian Constitution, making it the law of the land, and gave Canadians the Charter of Rights and Freedoms.

Until the Charter came into force Canada’s parliament, provincial legislatures, and ultimately politicians had the final say on the rights of individuals.  Prior to the Charter governments could take actions that violated the fundamental rights of Canadians, who had limited recourse to challenge those actions.  Notorious historic examples include the “head tax“ on prospective Chinese immigrants, the internment of Japanese Canadians during World War 2, and denying the right to vote to Indigenous people until 1960 among others.

Some of the rights set out in the Charter are fundamental freedoms of conscience and religion, thought, belief, opinion and expression, freedoms of the “press”, movement, peaceful assembly and association, and rights to life, liberty and security of person, due process, and equality.  However, as the Charter enters its fifth decade Canadians have to remember that while it gives us recourse to the courts if our rights are violated, the mere existence of the Charter has not eliminated the likelihood of governments and politicians choosing to violate those rights.

Since the Charter was proclaimed Canadians have witnessed numerous examples of the Charter rights of Canadians being violated by governments through legislation, and the use of the “notwithstanding” clause (Sec. 33).  This was the case for Indigenous people as Liberal and Conservative governments continued to violate the rights of Indigenous children and their families by allowing Residential Schools to operate until 1997. 

Some of the most notorious incidents of Charter rights violations in recent history occurred after the 9/11 terrorist attacks, when all Muslims became terrorism suspects, and national security laws were applied to this community with extreme prejudice. Two Muslim Canadians who experienced this first hand were Maher Arar and Omar Khadr.  Canadian government officials were complicit in Arar being imprisoned and tortured in Syria for supposed connections to Al-Qaeda, and the Charter rights of former child soldier Khadr were also violated when he was illegally imprisoned for 10 years in America’s Guantanamo Bay prison, where he was tortured with the knowledge and complicity of Canadian security officials.  In each case lawyers for Arar and Khadr sued the Canadian government, which admitted fault and paid more than CAD$10 million in compensation to each of them.

Across Canada there have also been frequent incidents during the past 40 years where the rights of Black Canadians and Indigenous people were repeatedly violated by governments and police.

In July 2016 Abdirahman Abdi, a Black man residing in Ottawa, died after being beaten by police during his arrest.  The officer who was charged for his murder was acquitted.  In June 2020, in the aftermath of anti-racism protests across the country highlighting police brutality against racialized people, police in New Brunswick killed two Indigenous people, Chantal Moore and Rodney Levi, in what were supposed to be “wellness” checks.  The officers involved in Moore’s and Levi’s deaths were never criminally charged despite calls from Indigenous leaders for charges to be laid.

Since 2019 Canadians have also been witness to the Quebec government violating the Charter rights of racialized religious minorities under its Bill 21 “secularism” law.  Federal leaders have been complicit in this and have enabled the law by not forcefully challenging it or demanding that it be directly referred to the Supreme Court.  The law is currently facing a Charter rights challenge by the Canadian Civil Liberties Association and the National Council of Canadian Muslims.

Furthermore, for over 14 years the federal government has been defying a Canadian Human RIghts Tribunal (CHRT) decision in support of more than 165,000 Indigenous children discriminated against under the child welfare system.  Under both Conservative and Liberal governments the CHRT Tribunal’s decision and court decisions upholding it have been challenged and appealed repeatedly in the courts, thereby denying justice to those affected.

These are only a handful of examples which demonstrate that the existence of the Charter is no guarantee that the rights of Canadians will be protected by those charged with protecting them.  They also show that governments and their agencies are willing to sacrifice the fundamental rights of Canadians if it is expedient, as is apparent by the fact that over the 40 years of the Charter being part of Canadian law Indigenous people, Black Canadians, Muslim Canadians and others have repeatedly had their rights violated, and have had to fight to ensure that their rights are upheld.

The Charter is a document that needs to be celebrated because it has enabled the abrogation of various unconstitutional laws.  But Canadians need to be aware of the reality that it has been ignored and repeatedly violated by those who are charged with protecting our fundamental rights under the Charter.

As Canadians enter the fifth decade of the Charter being the law of the land we must remember that our basic rights and freedoms are only guaranteed if we stand up to defend them.  It means challenging and taking action against those governments and public officials who believe that while we are all equal before the law some are less equal than others because of our racial background, ethnicity, faith, sexual identity, and other characteristics identified in the Charter.

If Canada’s Charter of Rights and Freedoms is to live up to the potential contained in its words over the next four decades it is up to all of us to make sure that defence of the fundamental rights of Canadians becomes a core value of our public institutions, and the people who lead our governments.  Anything less is unacceptable and a failure of political leadership.

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