| Canadian Charterof Rights and Freedoms | |
|---|---|
.jpg) English language version of the Charter | |
| Created | 1982 |
| Purpose | To protect the rights and freedoms of all Canadians |
| Full text | |
 Canadian Charter of Rights and Freedoms atWikisource | |
TheCanadian Charter of Rights and Freedoms (French:Charte canadienne des droits et libertés), often simply referred to as theCharter in Canada, is abill of rightsentrenched in theConstitution of Canada, forming the first part of theConstitution Act, 1982. TheCharter guarantees certain political rights to Canadian citizens and guarantees thecivil rights of everyone in Canada. It is designed to unify Canadians around a set of principles that embody those rights. TheCharter was proclaimed in force byQueen Elizabeth II of Canada on April 17, 1982, as part of theConstitution Act, 1982.
TheCharter was preceded by theCanadian Bill of Rights, enacted in 1960, which was a federalstatute rather than a constitutional document. TheBill of Rights exemplified an international trend towards formalizing human rights protections following the United Nations'Universal Declaration of Human Rights,[1] instigated by thecountry's movement for human rights and freedoms that emerged after World War II.[2] As a federal statute, theBill of Rights could be amended through the ordinary legislative process and had no application to provincial laws.[1] TheSupreme Court of Canada also narrowly interpreted theBill of Rights, showing reluctance to declare laws inoperative.[a] Between 1960 and 1982, only five of the thirty-five cases concerning theBill of Rights that were heard by the Supreme Court of Canada resulted in a successful outcome for claimants.[1] The relative ineffectiveness of theCanadian Bill of Rights motivated many to improve rights protections in Canada. The British Parliament formally enacted theCharter as a part of theCanada Act 1982 at the request of theParliament of Canada in 1982, the result of the efforts of the government ofPrime MinisterPierre Trudeau.
TheCharter greatly expanded the scope ofjudicial review, because theCharter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was theCanadian Bill of Rights.Canadian courts, when confronted with violations ofCharter rights, have struck down unconstitutional federal and provincial statutes and regulations or parts of statutes and regulations, as they did whenCanadian case law was primarily concerned with resolving issues offederalism. TheCharter, however, granted new powers to the courts to enforce remedies that are more creative and to exclude more evidence in trials. These powers are greater than what was typical under thecommon law and under a system of government that, influenced by Canada's parent country the United Kingdom, was based uponParliamentary supremacy. As a result, theCharter has attracted both broad support from a majority of the electorate and criticisms by opponents of increasedjudicial power. TheCharter applies only to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to the common law, not to private activity.
| Canadian Charter of Rights and Freedoms |
|---|
| Part of theConstitution Act, 1982 |
| Preamble |
| Guarantee of Rights and Freedoms |
| 1 |
| Fundamental Freedoms |
| 2 |
| Democratic Rights |
| 3,4,5 |
| Mobility Rights |
| 6 |
| Legal Rights |
| 7,8,9,10,11,12,13,14 |
| Equality Rights |
| 15 |
| Official Languages of Canada |
| 16,16.1,17,18,19,20,21,22 |
| Minority Language Education Rights |
| 23 |
| Enforcement |
| 24 |
| General |
| 25,26,27,28,29,30,31 |
| Application |
| 32,33 |
| Citation |
| 34 |
Under theCharter, people physically present in Canada have numerous civil and political rights. Most of the rights can be exercised by any legal person (theCharter does not define the corporation as a "legal person"),[2]: 741–2 but a few of the rights belong exclusively to natural persons, or (as in sections 3 and 6) only tocitizens of Canada. The rights are enforceable by the courts throughsection 24 of theCharter, which allows courts discretion to award remedies to those whose rights have been denied. This section also allows courts to exclude evidence in trials if the evidence was acquired in a way that conflicts with theCharter and might damage the reputation of the justice system.Section 32 confirms that theCharter is binding on the federal government, the territories under its authority, and the provincial governments.
Section 1 of theCharter, known as thelimitations clause, allows governments to justify certain infringements ofCharter rights. If a court finds that aCharter right has been infringed, it conducts an analysis under section 1 by applying theOakes test, a form ofproportionality review. Infringements are upheld if the government's objective in infringing the right is "pressing and substantial" in a "free and democratic society", and if the infringement can be "demonstrably justified".[3] TheSupreme Court of Canada has applied theOakes test to uphold laws againsthate speech (e.g., inR v Keegstra) andobscenity (e.g., inR v Butler). Section 1 also confirms that the rights listed in theCharter are guaranteed.
In addition, someCharter rights are subject to thenotwithstanding clause (section 33). The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7 through 15 for up to five years, subject to renewal. The Canadian federal government has never invoked it, and some have speculated that its use would be politically costly.[4] In the past, the notwithstanding clause was invoked routinely by the province ofQuebec (which did not support the enactment of theCharter but is subject to it nonetheless). The provinces ofSaskatchewan andAlberta have also invoked the notwithstanding clause, to end astrike and to protect an exclusivelyheterosexual definition of marriage,[5][b] respectively. In 2021, the government ofOntario under PremierDoug Ford invoked the notwithstanding clause in order to push through Bill 307, theProtecting Elections and Defending Democracy Act, doubling the amount of time election advertisements could run to 1 year from 6 months.[7][8] In 2006, the territory ofYukon also passed legislation that invoked the notwithstanding clause, but the legislation was never proclaimed in force.[9]
The rights and freedoms enshrined in 34 sections of theCharter include:
Generally, the right to participate in political activities and the right to ademocratic form of government are protected:
Rights of people in dealing with the justice system and law enforcement are protected:
Generally, people have the right to use either theEnglish orFrench language in communications with Canada's federal government and certain provincial governments. Specifically, the language laws in theCharter include:
The remaining provisions help to clarify how theCharter works in practice.
| Part of series on |
| Canadian human rights |
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Many of the rights and freedoms that are protected under theCharter, including the rights tofreedom of speech,habeas corpus, and thepresumption of innocence,[10] have their roots in a set of Canadian laws and legal precedents[11] sometimes known as theImplied Bill of Rights. Many of these rights were also included in theCanadian Bill of Rights, which theCanadian Parliament enacted in 1960. However, theBill of Rights had a number of shortcomings. Unlike theCharter, it was an ordinaryAct of Parliament, applicable only to the federal government, and could be amended by a simple majority of Parliament. Moreover, the courts chose to interpret theBill of Rights only sparingly, and only on rare occasions applied it to find a contrary law inoperative. Additionally, theBill of Rights did not contain all of the rights that are now included in the Charter, omitting, for instance, theright to vote[12] andfreedom of movement within Canada.[13]
The centennial ofCanadian Confederation in 1967 aroused greater interest within the government in constitutional reform. Such reforms would not only improve the safeguarding of rights, but would also amend the Constitution to free Canada from the authority ofBritish Parliament (also known aspatriation), ensuring the fullsovereignty of Canada. Subsequently,Attorney GeneralPierre Trudeau appointed law professorBarry Strayer to research a potential bill of rights. While writing his report, Strayer consulted with a number of notable legal scholars, includingWalter Tarnopolsky. Strayer's report advocated a number of ideas that would later be evident in theCharter, including the protection of language rights; exclusion of economic rights; and the allowance of limitations on rights, which would be included in theCharter's limitation and notwithstanding clauses.[14] In 1968, Strayer was made the director of the Constitutional Law Division of thePrivy Council Office, followed in 1974 by his appointment as assistant deputyMinister of Justice. During these years, Strayer played a role in writing the bill that was ultimately adopted.
Meanwhile, Trudeau, who had becomeLiberal leader and prime minister in 1968, still very much wanted a constitutional bill of rights. The federal and provincial governments discussed creating one during negotiations for patriation, resulting in theVictoria Charter in 1971, which was never implemented. Trudeau continued his efforts, however, promising constitutional change during the1980 Quebec referendum. He succeeded in 1982 with the passage of theCanada Act 1982 in the British Parliament, which enacted theConstitution Act, 1982 as part of the Constitution of Canada.
The inclusion of a charter of rights in the patriation process was a much-debated issue. Trudeau spoke on television in October 1980,[15] where he announced his intention of ajust society and constitutionalize a bill of rights that would include: fundamental freedoms, such as the freedom of movement, democratic guarantees, legal rights, language rights andequality rights.[16]: 269 However, Trudeau did not want a notwithstanding clause.[discuss] While his proposal gained popular support,[16]: 270 provincial leaders opposed the potential limits on their powers. The federalProgressive Conservativeopposition feared liberal bias among judges, should courts be called upon to enforce rights.[16]: 271 Additionally, the British Parliament cited their right to uphold Canada's old form of government.[16]: 272 At a suggestion of the Conservatives, Trudeau's government thus agreed to a committee ofsenators andmembers of Parliament (MPs) to further examine the bill as well as the patriation plan. During this time, 90 hours were spent on the bill of rights alone, all filmed for television, while civil rights experts andadvocacy groups put forward their perceptions on the draft charter's flaws and omissions and how to remedy them.[16]: 270 As Canada had a parliamentary system of government, and as judges were perceived not to have enforced rights well in the past, it was questioned whether the courts should be named as the enforcers of theCharter, as Trudeau wanted. Conservatives argued that elected politicians should be trusted instead. It was eventually decided that the responsibility should go to the courts. At the urging ofcivil libertarians, judges could now exclude evidence in trials if acquired in breach ofCharter rights in certain circumstances, something theCharter was not originally going to provide for.
As the process continued, more features were added to theCharter, including equality rights for people with disabilities, more sex equality guarantees, and recognition of Canada'smulticulturalism. The limitations clause was also reworded to focus less on the importance of parliamentary government and more on the justifiability of limits in free societies; the latter logic was more in line with rights developments around the world after World War II.[16]: 271–2
In its decision in thePatriation Reference (1981), the Supreme Court ruled there was aconstitutional convention that some provincial approval should be sought for constitutional reform. As the provinces still had doubts about theCharter's merits, Trudeau was forced to accept the notwithstanding clause to allow governments to opt out of certain obligations. The notwithstanding clause was accepted as part of a deal called theKitchen Accord, negotiated by the federal attorney generalJean Chrétien, Ontario's justice ministerRoy McMurtry, and Saskatchewan's justice ministerRoy Romanow. Pressure from provincial governments (which in Canada have jurisdiction over property) and from theNew Democratic Party, also prevented Trudeau from including any rights protecting private property.[17]
Quebec did not support theCharter (or theCanada Act 1982), with conflicting interpretations as to why. The opposition could have owed to theParti Québécois (PQ) leadership being allegedly uncooperative because it was more committed to gaining sovereignty for Quebec. This could have owed to the exclusion of Quebec leaders from the negotiation of the Kitchen Accord, which they saw as being too centralist. It could have also owed to objections by provincial leaders to the accord's provisions relating to the process of future constitutional amendment.[18] The PQ leaders also opposed the inclusion of mobility rights and minority language education rights.[19] TheCharter is applicable in Quebec because all provinces are bound by the constitution. However, Quebec's opposition to the 1982 patriation package led to two failed attempts to amend the constitution (theMeech Lake Accord andCharlottetown Accord) which were designed primarily to obtain Quebec's political approval of the Canadian constitutional order.
While theCanadian Charter of Rights and Freedoms was adopted in 1982, it was not until 1985 that the main provisions regarding equality rights (section 15) came into effect. The delay was meant to give the federal and provincial governments an opportunity to review pre-existing statutes and strike potentially unconstitutional inequalities.
TheCharter has been amended since its enactment. Section 25 was amended in 1983 to explicitly recognize more rights regardingAboriginal land claims, whilesection 16.1 was added in 1993. There have also been a number ofunsuccessful attempts to amend theCharter, including the failed Charlottetown Accord of 1992. The Charlottetown Accord would have specifically required theCharter to be interpreted in a manner respectful of Quebec'sdistinct society, and would have added further statements to theConstitution Act, 1867 regarding racial and sexual equality and collective rights, and aboutminority language communities. Though the Accord was negotiated among many interest groups, the resulting provisions were so vague that Trudeau, then out of office, feared they would actually conflict with and undermine theCharter's individual rights. He felt judicial review of the rights might be undermined if courts had to favour the policies of provincial governments, as governments would be given responsibility over linguistic minorities. Trudeau thus played a prominent role in leading the popular opposition to the Accord.[20]
The task of interpreting and enforcing theCharter falls to the courts, with the Supreme Court of Canada being the ultimate authority on the matter. Litigation involving the charter may be referred to as aCharter challenge.[21]
With theCharter's supremacy confirmed by section 52 of theConstitution Act, 1982, the courts continued their practice of striking down unconstitutional statutes or parts of statutes as they had with earlier case law regarding federalism. However, under section 24 of theCharter, courts also gained new powers to enforce creative remedies and exclude more evidence in trials. Courts have since made many important decisions, includingR v Morgentaler (1988), which struck downCanada's abortion law, andVriend v Alberta (1998), in which the Supreme Court found the province's exclusion ofsexual orientation as a prohibited grounds of discrimination violated the equality rights under section 15. In the latter case, the Court then read the protection into the law.
Courts may receiveCharter questions in a number of ways. Rights claimants could be prosecuted under acriminal law that they argue is unconstitutional. Others may feel government services and policies are not being dispensed in accordance with theCharter, and apply to lower-level courts for injunctions against the government.[c] A government may also raise questions of rights by submittingreference questions to higher-level courts; for example, Prime MinisterPaul Martin's government approached the Supreme Court with Charter questions as well as federalism concerns in the caseRe Same-Sex Marriage (2004). Provinces may also do this with their superior courts. The government ofPrince Edward Island initiated theProvincial Judges Reference by asking itsprovincial Supreme Court a question onjudicial independence under section 11.
In several important cases, judges developed various tests and precedents for interpreting specific provisions of theCharter, including theOakes test (section 1), set out in the caseR v Oakes (1986); and theLaw test (section 15), developed inLaw v Canada (1999) which has since become defunct.[22] SinceReference Re BC Motor Vehicle Act (1985), various approaches to defining and expanding the scope offundamental justice (i.e.,natural justice ordue process) under section 7 have been adopted.[d]
In general, courts have embraced apurposive interpretation ofCharter rights. This means that since early cases, such asHunter v Southam Inc (1984) andR v Big M Drug Mart Ltd (1985), they have concentrated less on the traditional, limited understanding of what each right meant when theCharter was adopted in 1982. Rather, focus has been given towards changing the scope of rights as appropriate to fit their broader purpose.[2]: 722, 724–25 This is tied to the "generous interpretation" of rights, as the purpose of theCharter provisions is assumed to be to increase rights and freedoms of people in a variety of circumstances, at the expense of the government powers.
Constitutional scholarPeter Hogg (2003) has approved of the generous approach in some cases, although for others he argues the purpose of the provisions was not to achieve a set of rights as broad as courts have imagined.[2]: 722, 724–25 The approach has not been without its critics. Alberta politicianTed Morton and political scientistRainer Knopff have been very critical of this phenomenon. Although they believe in the validity of theliving tree doctrine, which is the basis for the approach (and the tradition term for generous interpretations of the Canadian Constitution), they argueCharter case law has been more radical. When the living tree doctrine is applied correctly, Morton and Knopff (2000) claim, "the elm remained an elm; it grew new branches but did not transform itself into an oak or a willow." The doctrine can be used, for example, so a right is upheld even when a government threatens to violate it with new technology, as long as the essential right remains the same, but the authors claim that the courts have used the doctrine to "create new rights". As an example, the authors note that theCharter right againstself-incrimination has been extended to cover scenarios in the justice system that had previously been unregulated by self-incrimination rights in other Canadian laws.[23]: 46–47
Another general approach to interpretingCharter rights is to consider international legal precedents with countries that have specific rights protections, such as theU.S. Bill of Rights (which had influenced aspects of theCharter) and theConstitution of South Africa. However, international precedent is only of guiding value and is not binding. For example, the Supreme Court has referred to the Charter and the U.S. Bill of Rights as being "born to different countries in different ages and in different circumstances".[e][2]: 232
Advocacy groups frequentlyintervene in cases to make arguments on how to interpret theCharter. Some examples are theBritish Columbia Civil Liberties Association,Canadian Civil Liberties Association,Canadian Mental Health Association,Canadian Labour Congress, theWomen's Legal Education and Action Fund (LEAF), andREAL Women of Canada. The purpose of such interventions is to assist the court and to attempt to influence the court to render a decision favourable to the legal interests of the group.
A further approach to theCharter, taken by the courts, is thedialogue principle, which involves greater participation by elected governments. This approach involves governments drafting legislation in response to court rulings and courts acknowledging the effort if the new legislation is challenged.
Some Canadianmembers of Parliament saw the movement to entrench a charter as contrary to the British model ofParliamentary supremacy. Hogg (2003) has speculated that the reason for the British adoption of theHuman Rights Act 1998, which allows theEuropean Convention on Human Rights to be enforced directly in domestic courts, is partly because they were inspired by the similar CanadianCharter.[24]
The CanadianCharter bears a number of similarities to the European Convention, specifically in relation to the limitations clauses contained in the European document.[25] Because of this similarity with European human rights law, the Supreme Court turns not only to theUnited States Constitution case law in interpreting theCharter, but also toEuropean Court of Human Rights cases.
The core distinction between the U.S.Bill of Rights and the CanadianCharter is the existence of the limitations and notwithstanding clauses. Canadian courts have consequently interpreted each right more expansively. However, due to the limitations clause, where a violation of a right exists, the law will not necessarily grant protection of that right.[2]: 232–3 In contrast, rights under the U.S. Bill are absolute,[contradictory] thus a violation will not be found until there has been sufficient encroachment on those rights. The sum effect is that both constitutions provide comparable protection of many rights.[2]: 232–3 Canada's fundamental justice (section 7) is therefore interpreted to include more legal protections thandue process, which is the U.S. equivalent.
Freedom of expression (section 2) also has a wider-ranging scope than the freedom of speech guaranteed under the U.S.First Amendment (1A).[2]: 232–3 For instance, a form ofpicketing, though involving speech that might have otherwise been protected, was deemed as disruptive conduct and not protected by the U.S. 1A, but was considered by the Supreme Court inRWDSU v. Dolphin Delivery Ltd. (1986). The Supreme Court would rule the picketing, including the disruptive conduct, as fully protected under section 2 of theCharter, after which section 1 would be used to argue the injunction against the picketing as just.[26]
The limitations clause has also allowed governments to enact laws that would be considered unconstitutional in the U.S. For example, the Supreme Court has upheld some of Quebec's limits on the use ofEnglish on signs and has upheldpublication bans that prohibit media from mentioning the names of juvenile criminals.
The un-ratifiedEqual Rights Amendment in the U.S., which garnered many critics when proposed, performs a similar function to that of theCharter section 28, which received no comparable opposition.[27] Still, Canadian feminists had to stage large protests to demonstrate support for the inclusion of section 28, which had not been part of the original draft of the Charter.[28][29]
Another difference from the U.S. Bill of Rights is that theCharter does not provide any right to possess firearms. In 2000, the Supreme Court of Canada unanimously rejected a constitutional challenge to the federalFirearms Act, ruling that it was within the federalcriminal law power.[30]
TheInternational Covenant on Civil and Political Rights has several parallels with the CanadianCharter, but in some cases theCovenant goes further with regard to rights in its text. For example, a right tolegal aid has been read into section 10 of theCharter (right to counsel), but the Covenant explicitly guarantees the accused need not pay "if he does not have sufficient means".[2]: 233–4
Canada'sCharter has little to say, explicitly at least, about economic and social rights. On this point, it stands in marked contrast with theQuebec Charter of Human Rights and Freedoms and with theInternational Covenant on Economic, Social and Cultural Rights. There are some who feel economic rights ought to be read into the rights tosecurity of the person (section 7) and equality rights (section 15) to make the Charter similar to theCovenant.[28] The rationale is that economic rights can relate to a decentstandard of living and can help the civil rights flourish in a livable environment.[28] Canadian courts, however, have been hesitant in this area, stating that economic rights arepolitical questions and adding that aspositive rights, economic rights are of questionable legitimacy.[28]
TheCharter itself influenced theBill of Rights in the Constitution of South Africa.[28] The limitations clause under section 36 of the South African law has been compared to section 1 of theCharter.[25] Likewise,Jamaica'sCharter of Fundamental Rights and Freedoms was also influenced, in part, by Canada'sCharter.[31][32]
The "justified limitations" wording from section 1 of theCharter also directly influenced one of the core provisions in the New Zealand Bill of Rights Act 1990, section 5, which similarly states that the right and freedoms found in the New Zealand Act "may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.".[33][34]
TheCharter was intended to be a source ofCanadian values and national unity. As ProfessorAlan Cairns noted, "the initial federal government premise was on developing a pan-Canadian identity".[24] Pierre Trudeau himself later wrote in hisMemoirs (1993) that "Canada itself" could now be defined as a "society where all people are equal and where they share some fundamental values based upon freedom", and that all Canadians could identify with the values of liberty and equality.[35]
TheCharter's unifying purpose was particularly important to the mobility and language rights. According to authorRand Dyck (2000), some scholars believe section 23, with its minority language education rights, "was the only part of the Charter with which Pierre Trudeau was truly concerned".[36]: 442 Through the mobility and language rights,French Canadians, who have been at the centre of unity debates, are able to travel throughout all Canada and receive government and educational services in their own language. Hence, they are not confined to Quebec (the only province where they form the majority and where most of their population is based), which would polarize the country along regional lines. TheCharter was also supposed to standardize previously diverse laws throughout the country and gear them towards a single principle of liberty.[2]: 704–5
Formerpremier of OntarioBob Rae has stated that theCharter "functions as a symbol for all Canadians" in practice because it represents the core value of freedom.[24] AcademicPeter Russell has been more skeptical of theCharter's value in this field. Cairns, who feels theCharter is the most important constitutional document to many Canadians, and that theCharter was meant to shape the Canadian identity, has also expressed concern that groups within society see certain provisions as belonging to them alone rather than to all Canadians.[24] It has also been noted that issues likeabortion andpornography, raised by theCharter, tend to be controversial.[2]: 704–5 Still,opinion polls in 2002 showed Canadians felt theCharter significantly represented Canada, although many were unaware of the document's actual contents.[37]
The only values mentioned by theCharter's preamble arerecognition of the supremacy of God and therule of law, but these have been controversial and of minor legal consequence. In 1999, MPSvend Robinson brought forward a failed proposal before theHouse of Commons of Canada that would have amended theCharter by removing the mention of God, as he felt it did not reflect Canada's diversity.
Section 27 also recognizes a value of multiculturalism. In 2002, polls found 86% of Canadians approved of this section.[38]
While theCharter has enjoyed a great deal of popularity, with 82 percent of Canadians describing it as a good thing in opinion polls in 1987 and 1999,[24] the document has also been subject to published criticisms from both sides of the political spectrum. According to columnistDavid Akin (2017), while most Liberals support theCharter, mostConservatives, most New Democrats, mostIndigenous people, andQuébécois see theCharter as "problematic" and "something to be challenged in order to be Canadian".[39]
One left-wing critic is professorMichael Mandel (1989),[f] who wrote that, in comparison to politicians, judges do not have to be as sensitive to the will of the electorate, nor do they have to make sure their decisions are easily understandable to the average Canadian citizen. This, in Mandel's view, limits democracy.[36]: 446 Mandel has also asserted that theCharter makes Canada more like the United States, especially by serving corporate rights andindividual rights rather than group rights and social rights.[36]: 446 He has argued that there are several things that should be included in theCharter, such as aright to health care and a basic right to free education. Hence, the perceivedAmericanization of Canadian politics is seen as coming at the expense of values more important for Canadians.[36]: 446 The labour movement has been disappointed in the reluctance of the courts to use theCharter to support various forms of union activity, such as the "right to strike".[needs update]
Conservative criticsMorton andKnopff (2000) have raised several concerns about theCharter, notably by alleging that the federal government has used it to limit provincial powers by allying with various rights claimants and interest groups. In their bookThe Charter Revolution & the Court Party (2000), Morton and Knopff express their suspicions of this alliance in detail, accusing the Pierre Trudeau and Chrétien governments of funding litigious groups. For example, these governments used theCourt Challenges Program to support minority language educational rights claims. Morton and Knopff also assert thatcrown counsel has intentionally lost cases in which the government was taken to court for allegedly violating rights,[g] particularlygay rights andwomen's rights.[23]: 95
Political scientistRand Dyck (2000), in observing these criticisms, notes that while judges have had their scope of review widened, they have still upheld most laws challenged onCharter grounds. With regard to litigious interest groups, Dyck points out that "the record is not as clear as Morton and Knopff imply. All such groups have experienced wins and losses."[36]: 448
Political philosopherCharles Blattberg (2003) has criticized theCharter for contributing to the fragmentation of the country, at both the individual and group levels. In encouraging discourse based upon rights, Blattberg claims theCharter injects an adversarial spirit into Canadian politics, making it difficult to realize the common good. Blattberg also claims that theCharter undercuts the Canadian political community since it is ultimately a cosmopolitan document. Finally, he argues that people would be more motivated to uphold individual liberties if they were expressed with terms that are much "thicker" (less abstract) than rights.[40]
While the notwithstanding clause gives governments a unique way to override basic rights, Supreme Court judges have had a broad mandate to set out what those rights are
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