Improve the Charter of Rights and Freedoms
- submitted by Peter Vasdi 8 Jan 2004
Now that I've settled down and begun a family, I've spent considerable time in thinking about (and worrying about) the usual issues and challenges that we all recognize and are struggling with, basically, how can we improve our lives and ensure that our children can continue to do so.
So, based on my assumption that everything we, as Canadians, can do is somehow controlled by one basic document, I did a detailed read of the Canadian Charter of Rights and Freedoms (link 1, link 2). If such a foundation document has any limitations or other problems then we are in a bit of trouble.
Here is what I found, and what my suggestions are:
- Distinguish between two key concepts, which can each separately be defined by the two terms "freedom" and "right". Therefore, the Charter needs a separate and clear definition of what is a "right" and what is a "freedom".
A suggestion is to define a "right" is something that we must have unconditionally - something everyone must have access to; and a "freedom" as something that we "can" have but also something that must be balanced by a "responsibility". The wording of the Charter mixes the two concepts.
As one example, "movement" should be a freedom. A criminal would not have the same freedom of movement; the degree of movement allowed an individual depends on the responsibility an individual shows regarding his/her use of that freedom. On the other hand, the "pursuit of a livelihood" is truly a right.
- Do not mix individual rights and freedoms with those that pertain to groups of people such as the House of Commons. Reword to express only a generic statement regarding the right of each citizen to be protected by such groups based on the charters for each individual group. Then determine the conditions and mandate of each group through a separate document for that group only.
- Avoid complicated and potentially confusing words (legalese) such as "preclude", "abrogate", "derogate". The charter must written so that it can be clearly understood by its intended audience. If a clause must be expressed in legal terms for the purpose of legal clarity, then the clause should be preceded by another statement that means the same thing but is expressed in language that can be understood by anyone. If that duplication has to be done, then it should be stated and understood that the legal phrase is the binding portion of the clause.
- Avoid any statement that is specific to any part of Canada; for example, languages of New Brunswick. That clause should refer to the generic provincial right to determine its own official languages and the right of the citizen to represent him/herself in such official languages as are determined at the provincial level. Otherwise, the charter should refer to each province in turn, and will face constant amendment for each province as that province amends its own laws.
- Add certain rights that are now missing from the charter that, if included, would protect each individual in those areas and could simplify and make more efficient the processes and laws involved in pursuing those rights:
- the right to have access to and drink clean water
- the right to have access to and breathe fresh air.
These two rights have been and are continuing to be threatened and, because they are not enshrined in our charter, Canadians have no defense against such threats.
- Reword the statements that protect a freedom that is implied but not explicitly stated in the Charter. We should have the freedom to protect ourselves from threats to our rights and freedoms (as expressed in the Charter). Because this is a freedom, based on my definition of freedom above, this freedom should be balanced by certain responsibilities. Each freedom, as expressed in the Charter, should be the "tip of the iceberg" for a series of policies and laws that define the balances between the degrees of each freedom and the responsibilities that determine such degrees. The freedom to protect oneself, for example, would eliminate the need to enshrine the "right to bear arms" part of the U.S. Charter. With such a freedom, we would have the permission to use any means at our disposal to protect ourselves, but would have the responsibility to use the means that is appropriate to the circumstance.
- Because the Canadian Charter of Rights and Freedoms is probably the highest-level document that defines our country, this Charter should be accessible directly from the home page of our government's main website.