Canadian Charter of the rights and freedoms

The Canadian Charter of the rights and freedoms is a declaration of rights which forms the first part of the constitutional Loi of 1982 , itself added to the Constitution of Canada in 1982. Its goal is to protect the civil rights the Canadian against the actions, the policies and the laws of governments federal and provincial , and to unify the Canadians around a whole of values which incarnate these rights.

The Charte was preceded by the Canadian Déclaration by the rights , introduced by the government of John Diefenbaker in 1960. However, the Déclaration of the rights was only one federal law rather than a constitutional document, and thus had a range more limited much and was easily improvable. Moreover, as a federal Law, it could not apply to the provincial institutions and laws. These defects justify some within the government to be wanted to improve protection of the rights, following the example international movement for the rights and freedoms of the person who emerged after the Second world war with the Universal declaration of the Human rights . The Charte is put into force by the Loi of 1982 on Canada of the British Parlement under the reign of the Prime Minister Pierre Elliott Trudeau in 1982.

One of the most notable effects of the adoption of the Charte was to increase in an important way the range of the legal examination, because it is more explicit on the guarantee of the rights and the role of the judges in their application that was not to it the Déclaration of the rights . The courts, confronted with violations of the rights of the Charter , invalidated certain federal laws and provincial or of the parts of certain laws. However, the Charte grants new capacities to them to introduce in a creative way of repairs and to exclude more pieces of evidence at the time of the lawsuits. These capacities are larger than those which one met before in a mode of Common law and under a system of government which, under the influence of the the United Kingdom, was built on the principle of parliamentary sovereignty. Consequently, the Charter , supported well by the majority of the Canadians, is criticized by those which are opposed to the expansion judicial power.

The Charter applies exclusively to the action of the public authorities (Parliament and federal government, provincial and municipal, as well as the public school commissions) but not with the private reports/ratios of the citizens between them.

Provisions

Under the terms of the Charter , the people physically present at Canada enjoy many civic rights and political. The majority of the rights can be exerted by all nobody legal, including the companies (moral persons), but certain rights exclusively apply to the natural persons, i.e. with the Canadian citizens. The rights are applied by the courts under the terms of the article 24 of the Charte , which makes it possible the courts to grant damages to those of which the rights were violated. This article also makes it possible the courts to exclude the pieces of evidence obtained in a contrary way to the Charte and which could call into question the reputation of the legal system. The article 32 confirms that the Charte applies to the federal government, the territories under its authority, and the governments of the provinces.

The Charte devotes the following rights and freedoms:

fundamental freedoms (article 2): freedom of conscience, Freedom of religion, freedom of thought, freedom of belief, Freedom of thought, Freedom of expression and Freedom of the press, peaceful right to meet, and Right of association.

democratic rights : in a general way, right to take part in activities Political S and right to the Democracy:

Article 3: the Right to vote and to be eligible with the elections.

Article 4: the maximum duration of the legislatures is fixed at five years.

Article 5: the legislatures must hold at least a meeting per year.

right of circulation and establishment (article 6): right to enter and leave Canada, and to establish its residence in any province, or to reside out of Canada.

guaranteed legal : right of the people in their relationships to the legal system and the police force, of which:

Article 7: life, freedom and safety of the person.

Article 8: protection against the abusive excavations, searchings or seizures.

Article 9: protection against arbitrary detention.

Article 10: rights in the event of arrest or of detention, in particular right to a lawyer and right to be informed of this right.

Article 11: criminal and penal matter rights, such as the Presumption of innocence

Article 12: protection against the treatments or sorrows cruel and unusual.

Article 13: right not to show oneself.

Article 14: right to the assistance of a interprets at the time of a lawsuit.

right with the equality (article 15): right to the equal treatment in front of the law, independently of any discrimination.

right linguistics : In a general way, the right to use is the English or the French in the communications with the Canadian federal government and certain provincial governments. In a specific way, the linguistic rights devoted in the Charte include/understand:

Article 16: English and French are the official languages of the Canada and the New Brunswick.

Article 16.1: the French-speaking and anglophone communities have equal rights, in particular the right at institutions of teaching and cultural institutions.

Article 17: right to use one or the other of the official languages to the Parliament of Canada and the legislative Parliament of New Brunswick.

Article 18: the laws and the reports of the Parliament and the legislative Parliament of New Brunswick are printed in the two official languages.

Article 19: the two official languages can be used in the federal courts and of New Brunswick.

Article 20: right to communicate with the governments federal and of New Brunswick and to receive services in one or the other of the official languages.

Article 21: maintenance of the existing linguistic rights out of the Charter .

Article 22: the existing linguistic rights relating to the languages other than English or French were not affected by the fact that only the rights to English and French are in the Charte (for example, the rights to the use of the languages autochtones are maintained even if they are not specifically mentioned in the Charte ).

right with the instruction in the language of the minority (article 23): right of certain Canadian citizens of the minority speech communities (French-speaking or anglophone) to education in their own language.

These rights are in general subjected to the clause of the reasonable limits (article 1) and to the derogatory provision (article 33). The clause of the reasonable limits makes it possible the governments to justify certain violations with the rights of the Charte . Each business in which a jurisdiction discovers a violation of the Charte would thus require an analysis of article 1 to determine if the right can be maintained. The violations are maintained if the goal of the government action is to achieve a goal which would be recognized like urgent or important within the framework of an free society and democratic, if the justification of the violation can be shown. Thus, article 1 was used to maintain the laws prohibiting certain behaviors such as the heinous remarks and the obscenity, which could indeed be guaranteed by the Charter like participant in freedom of expression. Article 1 also confirms that all the rights present in the Charte are guaranteed.

The derogatory provision authorizes the governments to be passed in addition to the rights and registered freedoms in article 2 and articles 7 to 15, in a temporary way for one maximum duration five years; at the end of this period, the recourse to the provision must be renewed or the law which incorporates it becomes null and void. The federal government it forever called upon, and it is considered that its use could have serious political consequences. In the past, the derogatory provision was used in a systematic way by the government of the Quebec (which was opposed to the introduction of the Charte but which nevertheless is subjected there). The provinces of the Saskatchewan and the Alberta also had recourse to the derogatory provision, respectively to put an end to a Grève and to protect the traditional definition (hétérosexuelle) from the Mariage. The territory of the Yukon also adopted a law which called upon the derogatory provision, but it is never coming into effect.

The other articles contribute to clarify the practical application Charte .

Article 25: the Charte does not carry not reached to the existing rights and freedoms of the people autochtones. The rights of the autochtones, including the rights recognized by the treaties, enjoy additional protections in article 35 of the constitutional Loi of 1982 .

Article 26: the Charte does not constitute a negation of the other rights or freedoms to Canada.

Article 27: the Charte must be interpreted with the objective to promote the Multiculturalisme.

Article 28: the rights and freedoms of the Charte are also guaranteed for the people of the two sexes.

Article 29: the rights and preferences of the denominational schools are maintained.

Article 30: the Charte also applies to the territories.

Article 31: the Charte does not widen competences of the legislatures.

Finally, the article 34 declares that the first 34 articles of the constitutional Loi of 1982 must be known whole under the title of Canadian Charte of the rights and freedoms .

History

Majority of the rights and freedoms protected by the Charter , of which the right to the Freedom of expression, the Habeas corpus and the Présomption of innocence have their origins in a whole of Canadian laws and legal precedents often called “  charter of the rights implicite  ”. Good number of these rights were also included in the Canadian Déclaration of the rights , adopted by the Parlement of Canada in 1960. However, the Déclaration of the rights had several faults. Contrary to the Charter , it was only about one ordinary law, which could be amended by a simple majority at the Parliament and applied only to the federal government. The courts also chose to interpret the Déclaration in a preserving way; they only made use of it very seldom to invalidate a contrary law. The Déclaration of the rights did not contain all the rights which are today in the Charte , omitting for example the Right to vote and the freedom to circulate inside Canada. It did not found either the official bilingualism, which was initially introduced at the federal level by the Loi on the official languages in 1969 (the New Brunswick, which also includes/understands an important French-speaking minority, also adopted a law on official bilingualism the same year, and then reinforced this policy by devoting it in the Charte ).

The hundred years of the Canadian Confédération in 1967 causes an interest increased for the constitutional reform within the government. The reforms considered included the improvement of the protection of the rights and the Rapatriement of the constitution, which would mean that the Parlement of the United Kingdom would not have to give its agreement any more to the constitutional amendments. The prosecutor-general of the time, Pierre Trudeau, gives to the law professor Barry Strayer the mandate to inquire into the possibility of a possible charter of the rights. In the drafting of his report/ratio, Strayer consults a certain number of experts in right, including Walter Tarnopolsky. The report/ratio of Strayer recommends several ideas which are then included in the Charte , in particular the protection of the linguistic rights. Strayer also recommends to exclude the economic rights. Finally, it recommends to allow some limiting the exercise rights. These limits are included in the clauses of the reasonable limits and exemption of the Charte . In 1968, Strayer is named Directeur of the Division of constitutional law of the Office of the private Conseil and in 1974 he becomes assistant deputy minister of Justice. During these years, Strayer plays a part in the drafting of the Charte which was finally adopted.

During this time, Trudeau, become chief of the Liberal party and Prime Minister of Canada in 1968, always wishes a constitutional charter of the laws. The federal government and the provinces discuss the creation of such a charter at the time of one of the negotiations on the repatriation, which gave rise to the Charte of Victoria in 1971. This charter however was never adopted. Trudeau persists nevertheless in its efforts of repatriation of the constitution; during the Référendum of 1980 in Quebec, he promises change if the “  NON  ” carries it. In 1982, the constitutional Law of 1982 between into force by the adoption of the Law of 1982 on Canada .

The inclusion of a charter of the rights in the constitutional Loi is the debate object many. The October 2nd 1980, Trudeau is addressed to the Canadians on television and announces his intention to repatriate the constitution in a unilateral way by including there a charter of the rights which would guarantee fundamental freedoms, the democratic rights, the right of circulation, the legal guarantees, equality, and linguistics. He does not want a provision of exemption. Its proposal enjoys a certain popular support, but the leaders of the provinces oppose the potential limitation their capacities. The progressist-preserving opposition fears a liberal skew of the judges when the courts have to make respect the rights. Moreover, the British Parlement recalls its right to maintain the old shape of government of Canada. With the suggestion of the conservatives, the government of Trudeau thus agrees to form a committee of senators and Député S to examine more in-depth the charter proposed thus that the plan of repatriation. During this examination, 90 hours passed being studied only of the charter of the rights, all filmed for television, while experts of civic rights and various lobbys make share of their perceptions of the gaps and weaknesses of the charter and their proposals to cure it. As Canada had a parliamentary system of government, and as the judges were not perceived like having protected the rights in a sufficiently effective way in the past, one gave in doubt the will of Trudeau to name them as guards of the Charte . The Party progressist-conservative affirms that the elected officials of the people would be worthier of confidence. It is possibly decided to grant this capacity to the courts. Under the Libertarian pressure of the groups S, the judges acquire even the capacity to exclude from the pieces of evidence presented at the time of lawsuit if these elements had been obtained in a contrary way to the Charte , a provision that the Charte was not to contain in the beginning. As the process advances, more and more provisions are added to the Charte , of which right to the equality for the handicapped people, more guarantees for the equality of the sexes and the recognition of the Canadian Multiculturalisme. The provision of the reasonable limits is also modified to less stress the importance of the parliamentary system and more on the justification of such limits within the framework of an free society; this logic was more in phase with the development of the movement of the rights of the person around the world following the Second world war.

In its decision in the Renvoi on the modification of the Constitution (1981), the Supreme court of Canada had sliced that there was a tradition that a certain assent of the provinces was to be required for the constitutional reform. As the provinces had reserves on the merits of the Charte , Trudeau is forced to accept the idea of a provision making it possible the governments to derogate from some their obligations. The derogatory provision is accepted in an agreement which has occurred during the Nuit of the long knives after the negotiations of the public prosecutor Jean Chrétien, the Ontarian minister of Justice Roy McMurtry and the minister Saskatchewan board of Justice Roy Romanow. The pressures of the provincial governments and the political left, especially the New Democratic party, also prevent the inclusion of the rights protecting the private property. However, Quebec presses neither the Charte , nor the Loi of 1982 on Canada . Some affirm that the government pequist of the time was quite simply not very inclined with the co-operation, being more interested by the accession in the sovereignty of Quebec. Rene Lévesque, the Prime Minister for Quebec, is opposed to the vision which it finds too centralist of Trudeau; it is not informed of the negotiations and the agreement which has occurred during the night, and it is him which will give him the name of “  Harms of long the couteaux  ”. Quebec is also opposed to the rights of circulation and the rights to the instruction in the language of the minority. The Charte applies nevertheless to Quebec because all the provinces are subjected to the Constitution. However, the opposition of Quebec to the repatriation of 1982 led to two attempts to amend the Constitution (the Accord of the lake Meech and the Accord of Charlottetown) which mainly aimed at obtaining the agreement of Quebec to the Canadian constitutional order; these attempts are both balanced by the failure.

Although the Canadian Charte of the rights and freedoms was adopted in 1982, it is only in 1985 that the political tendencies concerning the rights to the equality (article 15) come into effect. This time was used to give to the governments federal and provincial time to examine their existing laws to repeal the potentially unconstitutional inequalities.

The Charte was modified since its adoption. The article 25 was amended in 1983 in order to explicitly recognize additional rights as for the territorial claims autochtones, and the article 16.1 was added in 1993. A proposal for an amendment guaranteeing the rights of the children nuns, presented in 1986 - 1986, was demolished at the Parliament. Other draft amendments of the constitution, whose Agreement of Charlottetown in 1992, were never adopted. These amendments would have specified that the Charte was to be interpreted so as to respect the “  distinct Company   ” of Quebec, and would have added several provisions to the constitutional Loi of 1867 concerning the equality of the sexes and the equality of the races, as well as the collective rights and the rights of the minority speech communities. The agreement had been negotiated by various lobbys; however, Trudeau (then with the retirement) found the new provisions so vague that it feared that they would enter in conflict with the individual rights of the Charte . It found that the rights would be undermined if the courts were to support the policies of the provincial governments, since the governments would receive the responsibility for the linguistic minorities. Trudeau played a leading role in the movement of opposition to the agreement of Charlottetown.

Interpretation and application

The task to interpret and apply the Charter of the rights and freedoms returns to the courts, the Supreme court of Canada being the final authority on the matter.

With the confirmation of the supremacy of the Charter by article 52 of the constitutional Law of 1982 , the courts continue their practice to invalidate the laws or the parts of laws considered to be unconstitutional, as they had done before in the cases concerning the federalism. However, by the article 24 of the Charte , the courts acquired capacities increased to force the application of repairs and to exclude more pieces of evidence at the time of lawsuit. The courts since gave several judgments important, including R.C. Morgentaler (1988), which invalidated the law prohibiting the Avortement in Canada, and Vriend C. Alberta (1998), in which the Supreme court sliced that the exclusion of homosexual by the province of protection against discrimination violated the article 15. In this last case, the Court then judged that this protection was implied in the law.

The courts can be seized of relative questions to the Charte in several way. Certain applicants can be continued under the terms of a law which they affirm being unconstitutional. Others can consider that the services and policies of the government are not applied in conformity with the Charte , and require an injunction against the government of the courses of first authority (as it was the case at the time of the business Doucet-Boudreau C. Nova Scotia (Minister for Education) ). A government can also raise a point of law by subjecting a question of reference to the higher courts; for example, the government of the Prime Minister Paul Martin with a question about the Charter in the case of the Reference relating to the marriage between people of the same sex (2004). The provincial governments can also make in the same way with their higher courts. The government of the Island-of-Prince-Edouard acted in this way by putting a question with its provincial Supreme court about the subject of legal independence under the article 11.

At the time of certain important businesses, the judges developed various tests and precedents to help with the interpretation of speficic provisions of the Charte , of which the “  Oakes  test; ” for the article 1, presented in the business R C. Oakes (1986) and the “  test of Law  ” for the article 15, developed in the judgment Law C. Canada (1999) Since the Reference on Motor Vehicle Act (C. - B.) in 1985, various approaches for the definition and the expansion of the range of the fundamental Justice under the article 7 was adopted.

In general, the courses adopted an advantageous interpretation of the recognized rights of the Charter. Since the first businesses, like Hunter C. Southam (1984) and R.C. Big Mr. Drug Mart (1985), the judicial power was not focused on the direction traditional and limited each right, such as they had been conceived at the time when the Charte was adopted in 1982, but changed the range of these rights to give them broader contents. One usually supposes that the objective of the provisions of the Charte is to increase the rights and freedoms of the individuals in a variety of circumstances, at the expense of the capacities of the government. The constitutional expert Peter Hogg approves this generous approach in certain cases, although for others he affirms that the objective of the provisions was not to come to a whole of rights as broad as the courts imagined. Indeed, this approach does not miss criticisms. The politician Albert Ain Ted Morton and the professor in political science Rainer Knopff are very critical of this phenomenon. Although they estimate that the doctrines of “  the tree vivant  ” (the name which one gives to generous interpretations of the Constitution of Canada) on which this approach is based is healthy, they affirm that jurisprudence relating to the Charte was more radical. When the doctrines of the alive tree are applied correctly, according to the two authors, “  the elm remains an elm; new branches push to him but it is not transformed into oak or saule.  ” The doctrines can be used, for example, so that a right is maintained even when a government threatens to violate it with a new technology, in as much as the gasoline even of the right remains the same one; the authors affirm however that the courts used the doctrines for “  to create new droits  ”. As example, the authors note that the protection of the Charte against the incrimination of oneself was wide until covering scenarios in the legal system which had not been regulated previously by the laws against the car-incrimination in the other Canadian laws.

Another general approach with the interpretation of the rights of the Charte is to take into account preceding benches with the the United States under their Déclaration of the rights , which has influence the text of the Charte and gave rise to much discussion on the range of the rights in a democratic system based on the Common law and way in which the charter of rights must be applied by the courts. However, American jurisprudence is not considered infallible. The Supreme court of Canada said Canadian and American laws which they were “  established in different countries at different times and in circumstances very différentes  ” Of the legal organizations also were formed and frequently intervene in the businesses to lend hand-strong to the courts in the process of interpretation of the Charte . As example, let us quote the Canadian Civil Liberties Association , the Congress of the work of Canada and the Funds of action and legal education of women (FAEJ).

Another approach with the Charter , adopted by the courts, is the principle of dialog, which implies a greater participation of the elected governments. This approach includes/understands the adoption by the governments of new legislations in answer to the decisions of short and the recognition by the court of these efforts if the new legislations are attacked under the terms of the Charte .

Comparison with other declarations of rights

Some Député S with the Parlement of Canada estimated that the will to devote a charter was contrary with the British model of parliamentary sovereignty. Others affirm that the European Convention of the human rights limit today the power of the British Parliament in a way much larger than did it the Charte for the Canadian Parliament and the provincial legislatures. The constitutionnalist Peter Hogg has advanced the assumption that the British adopted the European Convention partly because they were inspired for the similar example of the Canadian Charte .

The Canadian Charte is similar in many points to the European Convention , particularly by the clauses of limitations contained in the European document. The main reason of these similarities is that the Canadian Charte and the European Convention are both inspired by the Universal declaration of the Human rights . Because of these similarities, the Supreme court of Canada is inspired not only cases of jurisprudence relating to the Constitution by the United States of America by interpreting the Charte , but also by jurisprudences of the European Cour of the human rights.

The principal difference between the Declaration of the rights of the United States and the Canadian Charte is the existence of the provision of limitation and exemption. Consequently, the Canadian courts tend to interpret each right in a more generous way; however, because of the provision of limitation, where there is violation of a right, the law does not guarantee necessarily the protection of this right. By comparison, the rights in the American Déclaration are absolute; thus, a violation will not be found unless there was an important enfreinte of this right. The Net effect is that the two constitions offer a comparable protection of the majority of the rights. Fundamental justice (with the article 7 of the Canadian Charte ) is interpreted so as to include more legal protections that the due process , the American equivalent. Freedom of expression with the article 2 also has a range larger than the right to freedom of speech in the first amendment of the American constitution. As example, in the judgment SDGMR C. Dolphin Delivery (1986), the Supreme court of Canada had to come to a conclusion about a type of Strike picket interdict under the terms of the First American amendment, since they were disturbing behaviors (even if the strike picket included certain forms of expression which would be usually protected by the first amendment). The Supreme court however judged that the strike picket, including the disturbing behaviors, were fully protected under article 2 from the Charte . The Court was then based on the article 1 to judge that the injunction against the strike picket was right. The clause of the reasonable limits also made it possible the Canadian governments to adopt laws which would be unconstitutional in the United States. As example, the Supreme court of Canada maintained certain restrictions on the use of the English in posting in Quebec and maintained interdicts of publication which prevent the media from mentioning the names of the juvenile delinquents.

The article 28 of the Charte fulfills a function similar to the Equal Rights Amendment in the United States. However, the American amendment on the equal rights was not ratified at present. This situation is possibly the result of the bad reaction which the amendment caused at the religious line in the United States; there was no movement of opposition of this type to article 28 of the Charte . Nevertheless, the feminist organizations all the same organized great demonstrations to express their support with the inclusion of this section.

There exist several parallels between the Canadian Charte and the international Pacte relating to the civil laws and political , but in certain cases the text of the Pacte further goes than that from the Charte . For example, a right to the legal assistance was deduced from the article 10 from the Charte , but the Pacte explicitly guaranteed that a person is entitled to a lawyer without expenses “  if it does not have the means of the rémunérer.  ”

The Canadian Charte does not say large-thing, at least explicitly, on the economic rights and social. On this point, it is very different from the Québécois Charte of the rights and freedoms of the person and the international Pacte relating to the economic rights, social and cultural . Some believe that economic rights should be deduced from the article 7, which guarantee the right to safety of the person, and from the article 15 who guarantees the right to the equality, to return the Charte more similar to the Pacte . The argument is that the economic rights are related to an acceptable standard of living and can contribute so that the civic rights flower in a livable environment. The courses Canadian are however hesitant in this field, affirming that the economic rights are a political question of nature; they add that as a right positive, the legitimacy of the economic rights can be called in question.

The Charte influenced the Declaration of the rights in the Constitution of South Africa. Trudeau itself wrote in its Mémoires that Canada could from now on be defined as a company where all are equal and share certain fundamental values based on freedom, and which all the Canadians could be identified with the values of freedom and the equality.

The unifying objective of the Charte was particularly important for the rights of circulation and the rights linguistic. The author Rand Dyck affirms that according to certain experts, the article 23, which guarantees the right to the instruction in the language of the minority, was “  the only part of the Charter whose Pierre Trudeau was worried réellement.  ” ^, Thanks to the linguistic rights and the rights of circulation, the French-speaking Canadians, who find themselves in the center of the debates on the national unit, can circulate in all Canada and receive governmental services and services of education in their own language. Thus, they are not confined any more in Quebec (the only province where the French-speaking people are majority and where reside the majority of the French-speaking people of Canada) what would have more polarized the country on regional lines. The Charte was to also standardize the laws previously different through the country and to base them on the same principle of liberty.

Old the Prime Minister for Ontario, Bob Rae, affirmed that the Charte is a symbol for all the Canadians because it represents the fundamental value which is freedom. The professor Peter H. Russell shows more skeptic on the value of the Charte in this field. Cairn, which considers that the Charte is the constitutional document most important with the eyes of the majority of the Canadians and that the Charte was to be used as tool to work the Canadian identity, also expressed fears according to which groups within the company rather see certain provisions like their pertaining into clean than to all the Canadians.

The only values mentioned by the preamble to the '' Charte '' are the recognition of the supremacy of God and the rule of the law, but they are disputed by certain and have only few legal consequences. In 1999, the deputy Svend Robinson deposited a proposal with the House of Commons of Canada to amend the Charte in order to withdraw any mention of God from it, affirming that he did not see a reflection of Canadian diversity there (this proposal however was demolished). The article 27 also recognizes the Multiculturalisme, which the Department of the Canadian Inheritance affirms being a expensive value with the Canadians.

Criticisms

The Charter of the rights and freedoms enjoys a very great popularity in Canada; surveys carried out in 1987 and 1999 found that 82% of the Canadians estimate that the Charte is a good thing (the proportion was lower with the Quebec, to 64% in 1987, increasing to 70% in 1999). Thus, the Americanization of the Canadian policy is perceived as being with the costs of more important values to the eyes of the Canadians. The trade union movement is in particular disappointed reserve of the courts to use the Charte to support various forms of trade-union activities, like a “  right of grève  ”.

On the right, the Morton critics and Knopff raised several concerns concerning the Charte , in particular by affirming that the federal government uses it to circumscribe the capacities of the provinces while being combined with various applicants and lobbys. In their book The Short Charter Revolution & the Parties , Morton and Knopff expose in detail their suspicions of the existence of this alliance, showing the governments of Trudeau and Chrétien to subsidize various litigious groups. For example, these governments used the legal Program of dispute to support complaints under the terms of the right to the instruction in the language of the minority. Morton and Knopff also affirm that the Crown attorneys intentionally lost causes in which the government was continued for the pled violation of rights, in particular with regard to the rights of homosexual and women's rights.

The political economist Dyck Rand, by commenting on these criticisms, notes that if the range of the legal review of the judges were widened, they all in the same way maintained the majority of the laws which were the subject of disputes under the terms of the Charte . With regard to the litigious lobbys, Dyck makes the point that “  the assessment is not as clear as Morton and Knopff do not imply it. All these groups made the experiment of victories but also of défaites.  ”

Charles Blattberg, professor of philosophy political to the Université of Montreal, critical the Charte to have contributed to the fragmentation of the country, as much at the individual level that collective. By encouraging a speech centered on the rights, the Charte creates according to him a climate of confrontation in Canadian policy, making difficult the realization of the community property. Blattberg also affirms that the Charte mine the Canadian political community since it is ultimement about a cosmopolitan document. Lastly, he affirms that people would be motivated to support individual freedoms if they were expressed in terms less abstract than those of the rights.

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