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. United States law has a variety of standards for judging the adequacy of governmental justifications, for limiting constitutional rights, depending on the nature, strength and history of the particular right.
Second is the intelligent avoidance of a problem that has occasioned much debate throughout American history: What is the textual source of the power of judicial review? Section 24 (1) specifically provides that one whose rights are infringed shall have an appropriate judicial remedy. Chief Justice John Marshall derived a comparable authority for American courts from the nature of a written constitution and the doctrine of the separation of powers, since the constitutional text was silent on the issue. Without clear textual support, defenders of the legitimacy of judicial review of acts of Congress (and the president) have had to battle generation after generation with those who assail it as an usurpation. Third is section 24 (2) where the Canadian framers deal with the exclusionary rule, a frequently invoked American judicial rule penalizing illegal law enforcement practices. This rule was applied after 1914 to federal criminal proceeding and since 1961 to state proceedings.
There is a substantial body of opinion to the effect that the rule is not required by the United States Constitution and is simply a judicially created remedy that could be changed by legislation or court decisions. The Canadian provision is a compromise between the common law rule and the exclusionary rule. Fourth, there is the fascinating puzzle in the Canadian Charter in section 33, the 'notwithstanding' clause. Unlike the Unites States where the doctrine of incorporation ('due process' clause of Fourteenth Amendment) made the Bill of Rights a truly national document by prohibiting states from violating its provisions. Section 33 of the Charter allows the federal or provincial governments the power to declare that a statute shall operate notwithstanding sections 2 or 7-15 of the Charter. As stated earlier, one should bear in mind, that what the American experience has been is not by any means necessarily what the Canadian experience will be.
The Charter of Rights is similar, in many respects, but as shown, there are also some potentially important textual differences. Most notably, the 'notwithstanding' clause in section 33 of the Charter, and section 1 of the Charter, which states a single standard, applicable to all rights set out in the Charter. Although the two constitutional documents may be similar in respect to their provisions respecting rights, it would not necessarily follow that claims of violation of rights would receive the same response from the courts of both nations. A proper analysis of why this is so would require a book-length account of the constitutional and political history of Canada and the United States. It would include but would not be limited to the selection and role of judges, the role of legislatures and political leadership, the attitudes and practices of the police and administrative agencies, and, not least, popular attitudes towards rights, minorities, and government. In short, the whole of a people's way of life.
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Steven Talos, Michael Liepner and Gregory Dickinson. Understanding The Law Toronto: McGraw-Hill Ryerson Ltd, 1990.
Black, Charles L. The People and the Court: Judicial Review in a Democracy New York: Macmillan, 1960.