Combarison Between Us Bill Of Rights And

Charter Of Rights And Freedoms Essay, Research Paper

BACKGROUND OF THE BILL OF RIGHTS

The United States Bill of Rights came into being as a result of a promise made by the Fathers of Confederation to the states during the struggle for ratification of the Constitution in 1787-88. A great number of the states made as a condition for their ratification, the addition of amendments, which would guarantee citizens protection of their rights against the central government. Thus, we have a rather interesting situation in which the entrenchment of a bill of rights in the American Constitution was done by the virtual demand of the states, they themselves fearing a central government which was not legally constrained and restricted as far as its powers were concerned.

The resulting Bill of Rights is appended to the American Constitution as the first ten amendments. These amendments automatically became an integral part of the original document, making them part of The Supreme Law of the Land. It was then actually entrenched, as the phrase is used in Canadian terminology.

The American Civil War had a very profound effect upon the American Constitution and upon American constitutionalism generally. The Civil war had indeed been fought over a question of states rights, among other things, and the states rights interpretation had actually lost and was, to a degree, a casualty of the wartime period. Further, that casualty was swiftly hammered into its coffin by three amendments which were enacted in 1865, 1868 and 1870 the Thirteenth, Fourteenth and Fifteenth Amendments. The Fourteenth Amendment ultimately became the heart and soul of the modern American Constitution. Most of the legal battle s surrounding the United States Bill of Rights have been to make it a truly national document such that states may not violate its provisions. The Fourteenth Amendment finally made this possible.

A more sudden, but perhaps equally profound event is the adoption in 1982 of the Canadian Charter of Rights and Freedoms. Whereas before the adoption of the Charter Canadian legislatures were supreme, having power without limit within their jurisdictions, they now have debatable supremacy within altered jurisdictions. Moreover, although no powers or rights have been explicitly reserved to the people, supporters of the charter nevertheless appear to give Canadians hope that the possibility may exist.

COMPARISON OF BILL OF RIGHTS AND THE CANADIAN CHARTER

Whether the American record has great significance for Canada poses a question which reasonable people may disagree. The entrenchment of rights in the Canadian Constitution comes after long experience with a system of parliamentary supremacy. The American judicial tradition of treating the written constitution as fundamental law cannot have an instant Canadian counterpart. Thus, it does not follow that the Canadian courts will necessarily claim a role comparable to that of courts in the United States, nor is it clear that the representative bodies in Canada would tolerate such a judicial assertion of power. Opposition by government bodies to the Charter have already occurred in Canada, where the Parti Quebecois government of Quebec invoked the notwithstanding the Canadian Charter of Rights and Freedoms clause for the purpose of protecting their language laws from attack under the charter. This report will attempt to note some of the common and distinctive features of the text of the two constitutions as well as to how they differ.

Three major classes of rights are protected by both the Canadian and United States constitutions. Freedom of expression, religion, and assembly are safeguarded in part I section 2 of the Canadian Constitution Act, 1982, and in the First Amendment of the American Constitution. The Legal Rights listed in sections 7-14 of the Canadian Charter of Rights and Freedoms, protecting criminal suspects and defendants by various procedural safeguards, are paralleled by American rights to have counsel against double jeopardy, excessive bail, etc., which find expression in the Fourth, Fifth, Sixth and Eighth Amendments. Finally, the drive in modern democracies to provide greater legal protection against discriminatory official policies and actions finds expression in section 15 of the Canadian Charter, which bans discriminatory actions and authorizes affirmative action programs to remedy the injuries of past discrimination. The American equivalent, the equal protection of the laws in the Fourteenth Amendment, has served to justify court decisions outlawing segregated schools, unequal treatment of women, and certain forms of discrimination against aliens and other minorities.

As similar as the Canadian and American constitution may be in regards to their provisions respecting rights, both constitutions include provisions which are unique to their own respective documents. One of the most notable differences in the American Constitution, which has no direct counterpart in the Canadian system, is the right to bear arms, which finds expression in the Second Amendment. In regards to the Canadian Constitution there are at least four provisions which deserve a special comment.

First is section 1 of the Charter, which states a single standard, applicable to all of the rights set out in the Charter, for judging the legitimacy of governmental justifications for limiting rights. U