Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms represents an important break from the United Kingdom, which does not have a written bill of rights and only weak power of judicial review. As a result of the charter’s implementation, the Canadian constitution has become more like the Constitution of the United States. However, Canada’s charter differs in several important ways from the U.S. Constitution. The Canadian charter guarantees equality and group rights, while the U.S. Bill of Rights emphasizes individual liberty. While Americans failed to pass an Equal Rights Amendment for women, Canadian women successfully mobilized to have their equality acknowledged in the charter. Similarly, the Canadian Charter of Rights and Freedoms explicitly permits affirmative action, whereas such preferences seem to conflict with the Equal Protection Clause of the U.S. Constitution.

The charter specifically notes the need to balance the rights of individuals against the needs of the community, and Canadian laws that impinge on civil liberties are justified on this ground. The American constitution has no such clause. This leads American courts to interpret individual rights more absolutely and give less protection to the needs of groups or society at large. For example, Americans have a greater right to express racist or sexist speech than Canadians. Finally, the section 33 override clause allows the Canadian government to have the last word on whether a law should be enforced or not, whereas in the United States the U.S. Supreme Court is the final authority.