Yeah, but the Parliament can override pretty much all of the rulings people consider important. The charter of rights and freedoms says right in it that the parliament can void all judicial decisions in [various areas] ...
So... basically if a wacko government gets in, they can pass laws that take away pretty much all freedoms and legal protections over the objection of the courts. The only catch is they have to re-up the law every 5 years and they have to admit they are violating that right. ...
Not exactly. Section 31 of the Charter provides that: "Nothing in this Charter extends the legislative powers of any body or authority." Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
Schedule B to the Canada Act 1982 (UK), 1982, c 11.
As a result of this provision, Parliament does not enjoy the power to limit, say, freedom of speech, unless
another constitutional document outside of the Charter gives it that power -- because, pursuant to Charter § 31, nothing in the Charter creates new powers. And the power of legislatures in Canada to limit free speech has always been limited, long before the enactment of the Charter. See, e.g.,
Reference Re Alberta Statutes,
[1938] 2 DLR 81, 145-46, where Cannon J, concurring, wrote that:
| Under the British system, which is ours, no political party can erect a prohibitory barrier to prevent the electors from getting information concerning the policy of the government. Freedom of discussion is essential to enlighten public opinion in a democratic State; it cannot be curtailed without affecting the right of the people to be informed through sources independent of the government concerning matters of public interest. There must be an untrammelled publication of the news and political opinions of the political parties contending for ascendancy. As stated in the preamble of The [Constitution Act, 1867], our constitution is and will remain, unless radically changed, "similar in principle to that of the United Kingdom." At the time of Confederation, the United Kingdom was a democracy. Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the State within the limits set by the criminal code and the common law. |
Like the concurring opinion of Cannon J back in 1938, modern decisions continue to find that the preamble to the Constitution Act, 1867 (requiring Canada to have a constitution similar in principle to that of the UK) creates certain substantive rights. See, e.g.,
New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly),
[1993] 1 SCR 319, [1993] SCJ No 2 at ¶ 113. This is an actually an unusual interpretation of a preamble, which normally only announces the purpose of a document and does not create substantive rights, but nonetheless it is the law in Canada.
The key takeaway of my post here is that the Charter doesn't authorise legislatures to violate rights. Legislatures need to find elsewhere the constitutional basis for any such alleged powers.