The Canadian Charter of Rights and Freedoms and the United States Bill of Rights: A Comparison
Arizona State University (ASU) - Sandra Day O'Connor College of Law
McGill Law Journal, Vol. 28, p. 811, 1983
Although formal constitutional provisions are not exhaustive of the individual rights enjoyed by citizens of Canada or of the United States, a comparison of the new Canadian Charter and the United States Bill of Rights is illuminating. After discussing certain general topics relating to the scope of protected rights, including the requirement of governmental action, the assertion of affirmative rights and the degree of protection offered to victims of the incidental effects of discrimination, this article undertakes a comprehensive cataloguing of rights protected by the relevant United States and Canadian provisions. The article concludes that, in broad outline, the list of rights textually protected in each country is similar, but that there are distinctions which may be of importance, depending upon the approach taken ultimately by the Canadian judiciary. For example, the Charter seems to provide greater opportunities to assert collective minority rights than does the U.S. Bill of Rights. On the other hand, the Charter does not prohibit the "establishment" of religion, nor does it protect property rights explicitly. Drawing upon the wealth of United States case law, this article suggests potential difficulties for Canadian courts grappling with the Charter, and points to some possible solutions that have been devised by U.S. courts dealing with similar problems.
Number of Pages in PDF File: 56
Keywords: comparative law, Bill of Rights, Canadian Charter of RightsAccepted Paper Series
Date posted: June 25, 2009
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