1. Overview of Canadian Law
The Rule of Law stands against arbitrary actions undertaken by the State against its citizens and requires transparency of law, fair, predictable, and equal application of laws, an independent judiciary and due process. The Rule of Law ensures that the law is public and accessible – enabling people to understand legal obligations and the process governing legal procedures and processes.
Canada is a Rule of Law system. Canadian laws operate with the purpose and function of protecting the liberties and rights of people from violations by persons, companies, governments, or other entities. The Canadian Constitution is the supreme law of Canada, containing and explicating the conditions, rules, and regulations within which government and the people operate.
The first statement of the Charter of Rights and Freedoms (a section within the Canadian Constitution) states: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The Charter provides a guardrail to ensure that laws enacted by a government do not override or infringe on the individual rights and freedoms identified within the Act. The intention is not absolute as the Charter does place limits on the exercise of rights that could result in negative outcomes for Canadian society. For example, freedom of speech is a right protected under the Charter, but such freedom does not extend to hate speech.
It should be noted that the Charter of Rights and Freedoms contains a controversial provision at Section 33 – the Notwithstanding Clause. The clause enables parliaments within Canada to disregard specific sections of the Charter (sections 2 and 7 – 15) for up to five years if “non-controversial issues” warrant the invocation of the clause. Agreement on what counts as legitimate application of the clause continues to be vigorously debated in legal, academic, and political circles throughout the country.
Additional provisions of the Canadian Charter of Rights and Freedoms can be accessed via the links provided at the end of this chapter.