The Charter of Rights and Freedoms has had an immense and profound effect on Canadian equality. Quite simply, the Charter limits government power and increases individual rights, ultimately guaranteeing these rights for Canadians, within reason. The Charter is a very important document as it is the supreme law in Canada, allowing the Supreme Court to carry the ability to supersede unconstitutional laws. Many have discussed the increasing misconception that the creation of the Charter has had harmful effects on Canadians. However, these critics are ignoring the intent and the impact that Charter of Rights and Freedoms has on Canadian democracy. Although, in recent years it has failed to consider all minority groups within society, its intent is positive and just. Prime Minister Pierre Elliott Trudeau’s objective in the creation of the Charter was to unite Canadians through equality whilst attempting to overcome a difficult period in the country’s history. In this respect, the Charter has succeeded. A uniting factor for Canada is equality rights, especially since the nation has a number of multicultural groups representing its demographic population. The Charter of Rights and Freedom has had two primary functions – one to unite Canadians and secondly, to protect the values of a society through equality. In the second respect, the Charter still has many hurdles to overcome, specifically those of gay rights. One can see how the Charter’s challenges the discrimination of most minority groups and aids them in their plight to gain equality. But there have been key minority groups who have been left to fend for themselves in the eyes of the law. There have been a series of poignant events that led to the 1982 Charter, yet there are still many more to overcome. The Charter has attempted to incorporate a wide variety of clauses to aid many minority groups, but it does need to be adaptable to changing ideals and viewpoints. Ultimately, it is the improvements that can be made to the Charter of Rights and Freedoms that will ultimately define whether the government truly seeks to provide all citizens a sense of inclusion and equality.
Before elaborating how the Charter had affected equality rights to Canadians, it is essential to look at how and what lead up to its creation. The Charter was a created as a direct response to Quebec’s threat of independence from Canada. As stated by Trudeau, “When the erstwhile territorial state, held together by divine right, tradition and force, gave way to the nation-state based on the will of the people, a new glue had to be invented which would bind the nation together on a durable basis.” The Charter of Rights and Freedoms acted as the ‘glue’ that Trudeau believes will bind Canadians from province to province. In his eyes, the Charter was the greatest hope for a symbol of unity amongst Canadians. In a sense, Quebec’s resistance from the rest of Canada stemmed from that lack of explicitly defined equality rights in Canadian law. “Why do some advocate total independence for Quebec? It is because they have had enough of begging and lame compromises. It is because they have lost their hope of feeling at home throughout Canada. It is because they want to leave their minority status, their situation of dependence.” In Quebec view, English speakers heavily dominated Canadian politics, making Québecois feel as if they were minorities under English authority. Daniel Johnson, former Premier of Quebec, also elaborated that a Charter is needed to help mend relations with French and English speakers. “Also, I continue to believe in the possibility of a dialogue and establishing in Canada a new constitution which would set up from the top, for the entire country, a truly bi-national body, where the agents of both cultural communities could work together, on equal footing, to manage their common interest.” According to Johnson, Quebec needs equality on the same levels of their English counterparts and the best resolution is to form a Charter. The Charter of Rights and Freedom, “recognizes primary fundamental freedoms (e.g. freedom of expression and of association), democratic rights (e.g. the right to vote), mobility rights (e.g. the right to live anywhere in Canada), legal rights (e.g. the right to life, liberty and security of the person) and equality rights, and recognizes the multicultural heritage of Canadians. It also protects official language and minority language education rights. ” In the creation of a Charter, Trudeau alleviated the tense situation and reassured that Quebec’s cries of discrimination would no longer be an issue threatening the separation of Canada.
With the Charter, came a new outspoken group of Canadian’s defined by Alain Carins as ‘Charter Canadians’. This group act on the behalf of minority groups within Canada to dissect the Charter to ensure that each and every Canadian was well represented in this document. Specifically, women, Aboriginals and gay rights were some of the minority groups that the Charter Canadians believed were underrepresented within the Charter. Obviously, many felt that, like the Québecois, the Charter Canadians threatened the unification of Canada. F.L Morton critiques their role further in stating that “these ‘Charter Canadians’ have opposed constitutional amendment that would ‘weaken’ the Charter or the Court.” However, Charter Canadians do prove to be valuable, especially in the context of the Charter, as under Section 2b, Canadians are encouraged to practice their Freedom of Thought within an equality-based society. Charter Canadians are interested in simply fighting for minority groups. They are not infringing on the rights of other Canadians nor harming their rights and freedoms in their efforts to equalized Canada for the better.
Other than the Charter Canadians, minority groups themselves fight for representation within the Charter of Rights and Freedoms. It should be noted that the most updated version of the Charter of Rights and Freedoms fails to recognize gay rights, much less marriage. As a result, action have been taken against the Government and Courts by individuals to identify such issues within the Charter. On October 3, 2001, EGALE Canada Inc., a group of Lesbians and Gays claiming the right to get married, filed a claim against the government stating that gay rights were underrepresented within the Charter. This interest group argued that the Charter allowed leeway for discrimination and harmful actions to be taken against homosexual Canadians. The Charter also did not clarify whether it was a right of homosexual Canadians to marry legally in the eyes of the Canadian government. The court ruled that same-sex marriage was allowed and denying homosexuals this right would be infringing on the Charter under Section 15, regardless of the fact that gay rights is not included in the “without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability” clause.
Many Canadians continue to assert that in order to absolutely ensure that homosexual Canadians do not suffer the ramifications of homophobic ideals, that gay rights be included outright within Section 15. The Federal Government has left it to the responsibility of the provinces themselves to designate that gay rights are protected under the context of each Provincial Human Rights Codes. However, the Canadian Parliament has commented to the effect that “all Canadian jurisdictions prohibit discriminatory treatment based on sexual orientation, and the introduction of the Canadian Charter of Rights and Freedoms significantly altered the legal framework in matters of equality rights for lesbians and gay men.” Yet, the government has yet to include gay rights outwardly within the Canadian Charter of Rights and Freedoms. One could take this passive manner to indicate that the Canadian government still designates the inclusion of gay rights as a matter not pertaining the rights and freedoms of Canadians. This viewpoint could be seriously contested as the Charter of Rights and Freedoms is intended to set precedence and quite simply, an example for Canada as a whole as provinces should act in accordance to Federal positions and codifications.
As a result, many provinces have taken to the inclusion of gay rights in the Provincial Human Rights Code idly and apathetically. Alberta’s Premier Ralph Klein, fought against the inclusion of same-sex marriage within the province’s Human Rights Code. He allowed his own extreme position on the issue to impede on proper inclusion of all Canadians. Moreover, he purposely excluded and undermined gay rights within Alberta simply because he disagreed with the matter. Unfortunately, his views ultimately impeded on the mindsets of Albertans who only had 38% of the population accepting same-sex marriage. To exemplify this fact further, in 2009, Alberta became the last of the provinces to include the acceptance same-sex marriage within the Alberta Human Rights Code. This only further illustrates that Canada’s Charter of Rights and Freedoms needs to stand as an example for the entirety of the country rather than relying on the provinces themselves to outline the issue within their own Human Rights Code. The failure to include gay rights within the Charter allows provinces to outright discriminate against particular minority groups based on simpleminded and biased views of the few. It allows such behavior and discriminations to prosper, thus acting against what the Charter strives to achieve.
The media and demonstrations have increased and gathered strength for gay rights and same-sex marriage. For instance, Television series began to portray homosexuals in less stereotypical terms. Gay newspapers became increasingly popular in cities such as, Xtra Canada’s gay and lesbian newspaper that are available in Toronto, Ottawa and Vancouver for free to further raise awareness to Canadians on equality rights. Canada has been very prominent in increasing awareness and issues for gay rights even celebrating homosexuality. The first Gay pride celebration in North America occurred in August 1972 in Toronto. In current day the event attracts more then 750,000 people. Canada has been in the forefront in accepting gay rights, specifically same-sex marriage which has become such a global phenomenon. Media is a very powerful tool that can influence people and politicians. In 2006 when the Conservatives came into power they introduced a motion seeking to re-define marriage between a man and a women instead of persons. Members of Parliament (MP) in a free vote ultimately defeated this motion; demonstrators and media had influenced the MPs decision. However, the current Charter in place does not correspond with the current progressive reputation that Canada has gained from public support towards gay marriage. It is important to understand that the Charter of Rights and Freedom according to the Supreme Court should be reflective to Canadian values. “That our Constitution is a living tree which, by way of progressive interpretation, accommodates and address the realities of modern life” The Charter is meant to be dynamic and reflecting Canadian values, yet the Charter fails to recognize same-sex marriage, which a majority of Canadians have already accepted.
While the Charter has made great strides to strengthen Canadian unity, it has failed in a large respect towards gay rights. A great portion of the Canadian population has been disregarded and discriminated against as a result of the government’s lack of regard for their best interest. Although the Charter attempts to “guarantee the rights and freedoms set out in the subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”, they fail to do so in this respect. The Charter of Rights and Freedom is the mirror reflecting Canadian values to the rest of the world in its efforts to ensure that all Canadians are treated equally. It is not to be misunderstood that the Charter cannot resolve this issue. There needs to be amendments made to the Charter in order to ultimately solve the exclusion of gay rights from a national document. Without the revision, it only leaves a large aspect of the Canadian population unaccounted for and easy targets of discrimination and persecution.