Correctional Service Canada
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Canadian Charter of Rights and Freedoms
1982

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One of the most significant developments in the protection of human rights in Canada is the Charter of Rights and Freedoms. As part of a larger reform that patriated our Constitution, the Charter was entrenched in the Canadian Constitution under the leadership of then Prime Minister Pierre Elliot Trudeau. Coming into force on April 17, 1982, the Charter is recognized around the world as a model document protecting the rights and freedoms of its citizens.

The Charter of Rights and Freedoms clearly was influenced and inspired by international human rights documents, including the Universal Declaration of Human Rights. For example, like the Declaration, the Charter protects the right to life, liberty and security of the person, the right not to be subject to arbitrary detention, to equality before the law, and to freedom of religion. The Declaration may continue to influence the Charter through its interpretation by the Canadian courts. Chief Justice Dickson, as he then was, in Reference Re Public Service Employees Relations Act, 1987, commented that international instruments should be persuasive sources for interpretation and observed that the "Charter conforms to the spirit of the contemporary international human rights movement."

The Charter affirms and guarantees certain rights and freedoms that are considered essential in a free and democratic society. For the first time in Canadian history, these rights have been constitutionally entrenched. Significantly, entrenchment means that the Charter can only be revised through an amending formula that requires substantial agreement from both the federal and provincial governments. Moreover, as part of the Constitution, the Charter is part of the "supreme law of Canada" and any law that infringes upon the rights and freedoms guaranteed by it is of no force or effect.

The liberties we hold as individuals, however, cannot be absolute. Because we live in a society, there may be times when individual rights have to be limited. Section 1 of the Charter recognizes this and states that our guaranteed rights and freedoms are subject only to such "reasonable limits prescribed by law  as can be demonstrably justified in  a free and democratic society".

As in other areas, the Charter has had a profound impact in the protection of human rights in the field of corrections. Since its enactment, there have been an unprecedented number of court challenges to decisions of correctional authorities, and as a result a number of advancements have been achieved. For example, the common law principles of natural justice and the duty to act fairly have been magnified; cruel and unusual treatment or punishment has been interpreted more broadly; offenders have the right to be represented by counsel in serious disciplinary matters; the Private Family Visiting Program no longer discriminates on grounds of sexual orientation; and offenders have meaningful legal remedies when their rights have been denied or infringed upon. In a trilogy of cases in 1985, (R. v. Miller; Cardinal v. Kent Institution (Director); and Morin v. National Special Handling Unit Review Committee), the Supreme Court of Canada confirmed that offenders, while denied their absolute liberty, retain a wide range of rights and freedoms.

The Charter has also been cited by employees in relation to matters such as mandatory retirement, job security, pay equity, occupational safety, the right to strike and collective bargaining. For example, in Osborne v. Government of Canada (1988), federal civil servants challenged restrictions on their political activity under the Public Service Employment Act on the grounds that it violated their freedom of expression and association under Section 2 of the Charter. The Federal Court of Appeal found that the challenged provisions were too vague and were declared of no force or effect