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Canadian Charter of Rights and Freedoms


The Canadian Charter of Rights and Freedoms was added to the Canadian Constitution by the 1982 Constitution Act, which ‘repatriated’ a constitution, which had until then technically been simply a piece of British colonial legislation, the British North America Act of 1867. Modelled more closely on the US Bill of Rights (see Bill of Rights (USA)) than on the European Convention on Human Rights, it includes the classic ‘political’ civil liberties such as the rights to vote, and to freedom of speech and freedom of assembly, and an extensive version of the US equal protection clause. Inevitably it reflects specifically Canadian concerns for equality between language groups, but can be seen generally as a modernized, and more carefully drafted, version of the US document. Furthermore the first generation of interpreting judges, both on the Canadian Supreme Court and the lower federal courts, have been almost unanimous in giving the Charter a more liberal rather than restrictive interpretation when problems have arisen. It is difficult to assess how effective the Charter would be under certain possible political futures. Because the federal and provincial governments have themselves been very accommodating, if an attack on a statute on the grounds that it conflicts with the Charter is won by the plaintiff at trial, it is very common for the government not to appeal. Thus, for example, extensive interpretations of homosexual rights have been accepted under non-discrimination clauses that do not specifically mention sexual orientation, without the matter reaching the higher appeal courts. The Charter has a fairly complicated internal check mechanism, by which a government action can be said to be in breach of a detailed provision without being outlawed, if it is still shown to be necessary overall. Similarly the Charter contains what has come to be known as the ‘notwithstanding clause’. This allows a legislature to insist that the Charter not be applied to the act in question. An earlier attempt at human rights protection in Canada had contained a similar provision which was almost never used, and neither the notwithstanding clause nor the internal two-track test have prevented the Charter being applied very extensively. The weakest aspect of what has come to be called ‘charter jurisprudence’ is that the Supreme Court, very early, insisted that it would not interpret any version of horizontal effect, with the result that the Canadian citizen cannot cite the charter rights against another private citizen or legal individual other than the State. South Africa, for example, took the view that horizontal effect was so crucial to the full development of rights that it is written into the constitution itself and not left to the courts to decide.


Implementation of the Charter has resulted in substantial legal business, and some have complained that courts are overwhelmed with Charter cases, often on trivial matters. More generally it has been argued that the Charter works well almost because it was not necessary, Canada already having a consensual and accommodating political culture. Critics nevertheless fear that the Charter will produce an over-litigious political system, moving away from reliance on community accord and the consensus-building role of politicians towards an over-disputatious and more Americanized society. The Charter has great significance outside Canada, as an experiment in grafting a codified bill of rights on to a developed common-law regime, an idea that is increasingly gaining popularity in other common law countries like the United Kingdom and Australia. It needs to be remembered that the Canadian Supreme Court already had, to some degree, the power of judicial review, through which it had helped shape the federal structure of the previous constitution. Thus the New Zealand Bill of Rights Act, much newer than the Charter, may be a more applicable model for the UK; certainly it seems to have been in the eyes of those who drafted English law’s Human Rights Act. The Canadian example is likely to prove of continued interest in Australia, with its federal experience in a powerful High Court.


Cardozo


Benjamin Nathan Cardozo (1870–1938) is not only one of the half dozen most famous judicial thinkers in American history, he is arguably the single most-quoted foreign judge in English law. He was, in fact, only on the US Supreme Court for the last six years of his life, and much of his fame rests on his achievements while a member of the New York State Court of Appeals, the most consistently distinguished of all the major state courts. Though the civil law areas in which he first rose to prominence, the laws of liability for negligence and contract law, are not normally seen as having much to do with human rights, his judicial approach in developing these areas was in itself both liberal and egalitarian, and was also based on a judicial methodology of great importance. He became famous as the leading exponent of a whole school of judicial decision-making when his book The Nature of the Judicial Process was published in 1921. The book advocates what has often been called ‘sociological jurisprudence’, an insistence on making law work in the real world, and allowing factual material, including sociological research, to influence judicial decisions. He was opposed to formalism and strict interpretations; in contract law, for example, he urged judges to interpret contracts to the real benefit of both parties, rather than strictly interpreting clauses leaving one winner and one loser. Similarly he took an expansionist approach in civil liability, widening the range of those who could claim for damages. In his constitutional work on the US Supreme Court he was the leader in the process of incorporation by which the Bill of Rights (see Bill of Rights (USA)) was brought to bear on the states rather than merely the federal government, thus enormously expanding the range of cases in which courts could enforce basic human rights. At the same time he was a leader in developing a more realistic interpretation of the Constitution which allowed Congress far more power in areas like economic regulation than had been experienced previously in strict constructionist courts. His jurisprudence was guided by his own commitment to what he described as anything which was part of the ‘essence of any scheme of ordered liberty’. His fame in the USA is recognized in having countless prizes, scholarships, libraries and, indeed, a whole law school, named after him.


Caution on arrest


As part of the general attempt to secure a fair trial process most jurisdictions in the common law world insist that a police suspect be warned of his civil rights at various points in the investigative process, because the right to counsel and protection against self-incrimination require, if they are to be truly effective, that their protection starts as soon as possible. If a suspect does not get to see a lawyer until some time after he has been in police custody, or if he is not clearly warned that he is under no obligation to answer police questions from the very beginning of the process, he may seriously injure his own defence. The details of cautions, some of which are contained in statutes, while others are compiled from constitutions by judicial inference, vary considerably, in part to fit the exact shape of the right to silence guaranteed by the particular legal culture. In general they contain: a statement of why the person is being arrested; a statement that there is no duty to answer questions nor to give the police any information; a statement about the possible use in court of anything which is said; and a statement of whatever rights there may be to the provision of legal counsel. Exactly how many of these rights, even when generally available in the system, must be in the caution varies. For example, under the European Convention on Human Rights an arrested person must be told more or less immediately why he is being arrested, but although the Convention does guarantee a right to silence, by judicial interpretation of Article 6 rather than the strict language, it is not clear when the suspect must have this fact drawn to his attention. Much depends on the general admissibility of statements made to the police, and of the role of investigatory magistrates in the criminal process. Where, as is common in Europe, something like the examining magistrate system applies, and the trial system is less accusatorial, it is less important that the suspect is warned against speaking in such a way which might harm his defence. The traditional caution in the United Kingdom, based on the protections in the judge’s rules, has been modified since the Criminal Justice Act 1994 in line with the limited incursions made by that Act into the right to silence. After the warning that there is no need to say anything, a second warning is given to the effect that it may damage a suspect’s case if he relies in court on something he does not say to the police beforehand. Most systems require the caution to be repeated at various stages in the interrogatory process. What is often less clear is how much a police officer may ask a person he suspects of a crime before he is formally arrested, and how such material may be used by the prosecution. (See also arrest, interrogation and legal aid.)


Certiorari


Certiorari, the Latin word meaning be certified, was one of the old common-law prerogative writs, dating from before the 15th century. Like the writs of mandamus and prohibition, it was one of the techniques used by higher courts to control and discipline courts and persons with judicial responsibilities lower in the hierarchy. Certiorari is an instruction to a lower court to transmit the record of proceedings up to the court which orders it, so that they can do justice in the case. Such a transference was not, originally, technically an appeal. This is because certiorari lay only where, on the face of the matter, the inferior court had acted without jurisdiction, or had decided an issue wrongly in law. It could not, however, be used to re-try a matter of fact, nor in cases where the lower court, having legitimate jurisdiction, had misunderstood a legal point. This second refined distinction has largely evaporated, especially in the United Kingdom since the decision in Anisminic which effectively ended attempts at judge-proofing legislation. In the USA the granting of the writ of certiorari is the usual way in which appeals reach higher courts where no absolute right of appeal exists. When the US Supreme Court is said to be ‘granting cert’, it is exercising complete control of which cases it will accept, granting the certiorari writ to hear a matter that would otherwise terminate in a lower court. In the UK widespread procedural changes in the late 1990s, intended to make access to justice easier, abolished all the old writs and replaced those still regarded as necessary with new terminology. Certiorari thus no longer exists in form, although the rights of appeal it continued to cover have been protected.


Charter 77


Charter 77 is a dramatic example of how the sometimes apparently hopelessly utopian human rights movement can have real and lasting political consequences. Charter 77 was the banner behind which a group of dissident Czechoslovak intellectuals, among them Vaclav Havel, rallied to attack the Communist regime’s human rights record. They based their claim largely on the fact that Czechoslovakia had signed the 1975 Helsinki Final Accord (see Organization on Security and Co-operation in Europe) which, for the first time, had obliged Eastern European regimes to pay at least lip service to a largely Western conception of human rights. Although the original membership of 242 was persecuted by the authorities, the movement expanded, with almost 2,000 public signatories prepared to face the state’s oppression by the late 1980s. The international publicity the group gained was influential in keeping the civil rights emphasis alive in the country, and indeed elsewhere in Eastern Europe, because it was very difficult for the authorities to justify going against their own international actions. The group provided a focus for opposition to the Communist regime, which eventually bore fruit in the ‘velvet revolution’ of November 1989. Havel himself later became the President of both Czechoslovakia, and, in due course, the Czech Republic. Perhaps ironically, the issue on which Charter 77 was founded was outrage at the harsh sentences passed on a Czech rock band, ‘The Plastic People of the Universe’, rather than more classic entrenched repression of political activists.


Chilling effects


The idea of a law or practice having a ‘chilling effect’, the fear that certain legal action in pursuit of rights may place curbs on the freedoms of others, has developed from a narrow and precise doctrine in US civil rights law to have a more general usage both inside and beyond the US legal system. Originally the idea of a chilling effect covered the giving up of First Amendment rights by those frightened that challenging a possibly unconstitutional restriction on them would bring prosecution which it would be preferable to avoid, even if the prosecution ultimately failed. The First Amendment rights are the highly political rights to freedom of speech, freedom of assembly, press, petition and the various religious freedom rights. If people are deterred from claiming their political rights to protest against governments for fear that a court may deem their actions unprotected, the value of the rights themselves is much discounted. Aware of the danger of such concerns, US courts have been generous in allowing standing to such plaintiffs to maximize their own ability to cut down on unacceptable infringements of freedoms. The idea has spread to involve almost any actions taken, or avoided, for fear of what a court may interpret some legislation to mean, even when the person suffering from the ‘chill’ in question genuinely does not believe his behaviour should legitimately be interpreted as a breach of the rule. The idea has been applied, for example, to the tendency of the German Parliament to craft its legislation with an eye to possible contradictory interpretations by the German Constitutional Court. It has similarly recently been argued in the United Kingdom that the doctrine developed in Pepper v. Hart, in 1993, allowing the courts to examine the parliamentary record to interpret legislation according to what a minister has said in the debate on the bill in question, may have a chilling effect on parliamentary debate.


Thus a state government might pass a law restricting political demonstrations, knowing that it may ultimately be ruled unconstitutional, but relying on the impact it will have until that time. By contrast, in Germany it is held that German legislators can be restrained from trying to carry out a policy, even if it might turn out to be acceptable to the court, because of the political embarrassment of being overruled. The British government minister may give a very narrow interpretation of a proposed bill in a speech to the House of Commons for fear of how the Law Lords may use anything said in a later interpretation; this will then become a self-imposed restriction, possibly preventing the government from doing as much as it wants, for fear of being taken to intend to do even more than it wants. Recognition of chilling effects accepts that much of the impact of any law or administrative policy depends on the uncertainty of law because of the importance of judicial discretion.


Choice of occupation


The right freely to choose and exercise an occupation is most clearly stated in the German Constitution; Article 12 provides that ‘All Germans shall have the right freely to choose their trade, occupation or profession.’ This right is not absolute, as there are limitations; for example, the regulation of professions by the government, and the 1956 amendment allowing conscriptive military service, which is subject to a very strong protection for conscientious objection. Some other countries have come close to recognizing the right to choice of occupation as a specific human right, and where it has been recognized, in Israel for example, the right can have quite extensive applications. The main aim in protecting such a right is to prevent a system where people are directed into that work which the state feels it needs; where it is threatened, such a liberty is indeed precious given that one’s work forms so large a part of one’s entire identity. In these terms it is seldom threatened outside national emergencies in modern states. However, the right to practise a profession can easily run into limitations imposed by the state for otherwise legitimate reasons, and it is in this context that the right has been recognized and proven to be politically controversial in the USA. The Fourteenth Amendment protects ‘property rights’ in a very broad sense, which in the 19th century was held to include the right to practise one’s trade. In one of the classic cases of US jurisprudence, known as the Slaughterhouse case, a very strong minority voted to overthrow a state law setting up a monopoly in animal slaughtering, on the grounds that the right to labour as animal slaughterers on their own account was thus violated. Although the case in question was lost, this extensive definition of property proved to be extremely important in the development of the US concept of substantive due process. The right to choose and exercise any trade or profession, subject only to regulation in the public interest (for example, licensing of doctors or lawyers by professional bodies), is a prime example of how a right can be simultaneously an economic interest right and a personal development right, with inevitable problems for its justification and definition. (See also forced or compulsory labour).


Citizenship


Citizenship is a legal status defining the relationship between an individual and the state, defining both rights and duties each bears to the other. Although the classical world understood the idea of citizenship, with both Greek and Roman legal systems giving complex definitions, it largely lapsed during the post-Roman Empire era and was revived, with a new meaning, by the American and French revolutions. The notion of citizenship is in sharp contrast to the historically rival notion of being a subject. In countries ruled by a powerful monarch, subjects owed their sovereign unquestioning obedience and allegiance, and could even be said to be his property. A citizen, on the other hand, is himself part of the sovereign, when sovereignty comes to be seen as a collective attribute of the people. Thus in ancient Greece there was a clear distinction between citizens and non-citizens, namely women, slaves and resident aliens, who nevertheless lived legitimately in the city state and were obliged to obey its laws. Citizens had duties, sometimes more arduous duties than residents, but also enjoyed political rights, within a form of participatory democracy, denied to noncitizens. The Roman Empire originally restricted citizenship to free-born descendants of the original population of the city of Rome, and only in AD 212 was Roman citizenship extended to all free-born males in the Empire. Nowadays citizenship is the norm: it is the usual relationship between a native inhabitant of a country and its state even where monarchies still exist, and citizenship carries the political rights to vote (see voting rights), to be elected, to serve on juries, and generally to engage in the political system.


As a rule citizenship is acquired by birth, although this can as easily mean inheriting the citizenship of one’s parents or acquiring the citizenship of the country of birth. Citizenship law is, however, everywhere complex and usually controversial in marginal cases. Some countries allow their citizens to acquire citizenship of other states, while others regard such acquisition as effectively renouncing the original citizenship, which can cause considerable problems for the children of marriages between citizens of different countries. Most countries allow some methods of acquiring their citizenship other than birth, such as by naturalization of legal immigrants or by marriage, but the conditions placed on such acquisition can be very restrictive. Furthermore, European countries with a significant colonial history have all inherited problems from that past relating to the extent to which they are legally or morally obliged to offer the protection of their citizenship to inhabitants of their former colonies (see also asylum).


The connection between the words ‘city’ and ‘citizenship’ is not accidental; citizenship as a legal relationship of mutuality of duty and privilege developed in the small face-to-face societies of classical city states where some actual degree of equality was found. When these were swept away in the creation by conquest of much larger empires the mutuality, based on the society of equals, was replaced by the domination of power which turned most people into subjects. Only as the Middle Ages saw the development of cities as centres of real power in rivalry to the church and the nobility did citizenship again become an important, and highly desirable, status.

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