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Remarks of the Right Honourable Beverley McLachlin, P.C.
Canadian Rights and Freedoms: 20 Years Under the Charter
April 17, 2002
Coming of Age: Canadian Nationhood and the Charter of Rights
Thank you for your warm welcome. I appreciate it.
Introduction
Twenty years are all that separate us from that cold and blustery day -- April 17, 1982 -- which marked the Patriation of our Constitution and the adoption of the Charter of Rights.
Thinking of that day conjures up a vivid image of that drizzly scene on Parliament Hill -- the Queen signing the rain-spotted parchment, as Pierre-Elliott Trudeau looks on, smiling, and our present Prime Minister, then Justice Minister, stands proudly looking on. For many of us, the image of that signing ceremony evokes memories of the excitement that was in the air about Canada's possibilities; of the sense that Canada had come into its own, was setting out to chart its own course; and perhaps most of all, of a pervasive feeling of enthusiasm, of optimism and hope for the future.
In many ways, Trudeau himself -- with his intellectual rigour and his pirouettes -- seemed to incarnate the spirit of those times: Patriating the Constitution and introducing the Charter reflected a willingness for Canada to break with tradition and strike its own path -- but on the basis of a clearly-articulated, forward-looking, and distinctly Canadian vision of what that path would look like.
And so, here we are, twenty years after the event, looking back. Two decades in the life of a country is not such a long time. Two decades -- twenty years -- is still very much human time, a mere generation, a span for measuring our own lives and the lives of those we know. While that day in April 1982 has slipped into the past, it has not yet slipped very far. Some day, we -- or others -- will be able to look back upon the Charter with the benefit of historical distance. But that day has not yet come. The whole story of the Charter, from its inception to this day, is contemporaneous: for many of us, it is a story entirely encompassed within our own lifetimes.
While the Charter is no longer in its infancy, these are still early years in its life. The Charter is still a work in progress, an unfinished project. Perhaps, it will always be. Future generations will have a great role to play in shaping it. To borrow Viscount Sankey's expression, the Charter is very much a living tree. I believe it was Chou En-lai who, when asked whether he thought the French Revolution had been a good idea, replied "It is too soon to tell". In many ways, then, it may simply be too early to pass judgment on the Charter.
And yet, twenty years into the Charter's life, it is possible to take stock. There is a great deal that can be said about the Charter.
In Shakespeare's Julius Caesar, Mark Antony famously says to his Roman countrymen: "I come not to praise Caesar, but to bury him." As I stand before you tonight, asking you to lend me your ears, let me say: "I come not to praise the Supreme Court's Charter jurisprudence." At least, not in great detail. Nor do I come to bury Charter doctrines, or defend them. Rather, as we look back together on Twenty Years Under the Charter, I propose to consider a more basic question.
There is no doubt that the adoption of the Charter in 1982 was the landmark event for Canadian law, at least in our lifetimes. The Charter has shaped our legal landscape, in so many ways. The "story" of Canadian law has been, and will for the foreseeable future continue to be, the story of the Charter's impact on Canadian law. But the Charter's impact does not end there. A major part of the Charter's story is its impact, not just on Canadian law, but on Canada itself.
If there is a common theme that emerges from the media coverage on the Charter of the last few days and from the celebration we held at noon –today it is that the Charter has become part of Canada's identity. To quote the theme on today's poster: La Charte: c'est à nous. La Charte: c'est nous.
Canadian Identity and the Charter
People are aware of the Charter, people have opinions about the Charter, in a way that would be inconceivable for almost any other legal idea or legal text. By way of illustration: on April 6, 2002, the Globe and Mail began a four-part series of articles on the impact of the Charter of Rights. The following headline ran on the front page of Saturday's paper: "Most still firmly believe in Charter, poll finds1." The accompanying article reported that "[n]early three-quarters of Canadians view their rights as better protected because of the Charter," according to an Ipsos-Reid poll. Other opinion polls say essentially the same thing.
I am delighted, as you might expect, to hear that people have embraced the Charter so thoroughly, and have confidence that their rights are protected by it. But the point that really stands out, I think, is that the Charter of Rights is the kind of topic that can be the subject of an opinion poll. That means that Canadians have acquired a certain level of knowledge of the contents of the Charter, may have a familiarity with some of the major Charter cases and have an understanding of the respective roles of the courts and elected officials. The Charter really is an issue that many people have thought about, have opinions about, and are interested in reading about. What is more, it is a document we are proud of, that most of us like. Comme canadiens et canadiennes, la Charte nous touche tous de très près.
Why have Canadians embraced the Charter so thoroughly and affectionately? Why have so many asserted in the past few days that it has become part of Canada's identity?
An easy answer might be that Canadians have been subjected to 20 years now of debate about whether the Charter is good or bad; about whether it has improperly thrust judges into the political arena. No doubt there has been a lot of this sort of debate, as there should be in a mature democracy. And no doubt it has made Canadians more aware of the Charter. But this does not explain why Canadians have embraced the Charter as their own.
Another answer is that, like many peoples throughout the world, Canadians have come to see themselves as "rights holders". The Charter fits and enhances, the argument goes, a new "rights mindset". Thus Michel Ignatieff speaks of the Charter as part of what he calls the "rights revolution". But the "rights revolution" important as it is, does not fully explain why the Charter has been absorbed into the national imagination, as a defining element of who and what we are as Canadians.
To understand why the Charter has become part of the Canadian identity in 20 short years, we must look beyond the debate it has engendered, beyond the general appeal of the "rights revolution". We must focus more closely on what it means to Canada, as a people.
Tonight, I would like to suggest that the reasons Canadians have adopted the Charter can be fully understood only by recognizing three realities:
- The fact that together with the Patriation Act, the Charter reflects Canada's national coming of age;
- The hands-on made in Canada process that led to the adoption of the Charter, and
- The fact that the Charter expresses who we are as a people.
In the time that remains, I would like to look briefly at each of these Charter realities.
1) Patriation and the Adoption of the Charter as Canada's "Coming of Legal Age"
The Patriation of the Constitution and the adoption of the Charter of Rights, on April 17, 1982, symbolized Canada's Coming of Legal Age. This is true both of our legal order, and more fundamentally, of the way Canadians perceived their country.
Patriation marked the culmination of a long process by which our jurisprudence became truly Canadian. The jurisprudence of Canada's first century (outside the Civil Code of Québec2) was dominated by Britain. Slowly, in the last half of the 19th Century, Canada's courts started down the road toward made-in-Canada law. A vital step was the curtailment, and ultimately the abolition, of appeals to the Judicial Committee of the Privy Council3. But the final stride was the Patriation of the Constitution and adoption of the Charter in 1982.
The symbolism of Patriation was felt not just by lawyers, judges and legal scholars. When Patriation "brought Canada's Constitution home," ordinary Canadians shared in a sense of renewed purpose for their country. The significance of this goes far beyond technical changes to the formula for amending the Constitution. Patriation symbolized an assertion of control over our national destiny, a taking-in-hand of our affairs, that Canadians found deeply appealing -- what is more important for which Canadians were ready. Politically and constitutionally, the Patriation of our Constitution marked Canada's transition into full-fledged adulthood, independent, in control of its destiny, and brimming with confidence for the future.
Hand in hand with this new independence came the Charter of Rights. In the Charter, I think Canadians saw the reflection of the kind of society they wished to build, for themselves and for generations to come. While Patriation symbolized the raw fact of self-determination, the Charter made a statement about the purposes to which Canada should dedicate itself. Every nation needs a basic statement of what it stands for. For Canada, the Charter was that statement.
2) A Process Made-in-Canada by Canadians
The process by which Canadians went about drafting their own unique statement of values helped confirm its significance to our identity. The Charter was not produced by a few trained draftsmen, nor yet by a select conference of statesmen, but quite literally by the men and women of Canada. To be sure, statesmen and draftsmen served well. But what I find remarkable about the genesis of the Charter is the degree to which individuals and groups of ordinary Canadians contributed to its content.
The idea of constitutional change in general and a Charter of Rights and Freedoms in particular, may have begun with Prime Minister Trudeau's desire to anchor Canadian unity in equality and individual rights. It may have been driven forward by the vision of his first ministers and provincial counterparts. But well before the process was completed, Canadians had laid claim to the process, insisting that they should have a say in the new document's content. Early drafts of the Charter focused mainly on individual rights drafted in conventional constitutional language. By the time individuals, advocacy groups and First Nations had done their work, many of individual rights guarantees had been reworked and the Charter included guarantees for collective language rights, women's equality, multicultural heritage and aboriginal rights.
The main concern of citizens and their representative groups was to expand the guarantees of the Charter. They mounted a campaign in the parliamentary committee hearings in the winter of 1980-1 designed to improve what some described as a "seriously flawed4" document. This grass-roots campaign proved to be remarkably effective, and led to a variety of amendments, particularly to section 1 (the relationship between individual rights and collective state interest) and section 15 (equality), as well as the addition of new provisions aimed at protecting the interests of particular groups. The result was a document that mirrored the distinctive Canadian values of respectful tolerance, pluralism, and the interlocking rights and responsibilities of the individual and the state.
3) The Charter as Expression of Who We Are
This brings me to the third reason why Canadians have adopted the Charter as part of their identity – it reflects who we are as a people.
The Charter, while it borrows from venerable international traditions, is a uniquely Canadian amalgam. It is the product of our distinctive history. When the Charter came into force in April, 1982, much was said and written about its sources. Some saw it as a clone of the United States Bill of Rights, elevating the ethic of individualism to constitutional status. Others argued that it was more European than American in flavour, with its insistence on balancing individual rights against public interests. Few noticed how well attuned the Charter was to Canadian values and sensibilities.
In my view, the uniquely Canadian character of the Charter is reflected in its emphasis on three kinds of rights: individual rights, tied to a conception of tolerance and respect; collective interests, bound up with an appreciation of the relationship of support and obligation between individual and community; and group rights, tied to a recognition that of pluralism is one of Canada's animating values. The Charter reconciles these three types of rights, not as contending forces balanced precariously against each other in basic opposition, but as complementary rights, drawing strength and support from each other. This, I think, is the Charter's defining characteristic. And, to the extent this is so, it resonates with Canadians' conception of themselves.
Individual Rights
The protection of individual rights is basic to the Charter. In this, the Charter belongs to that global family of constitutional documents which enshrined basic rights throughout the latter half of the 20th century, in order to prevent a recurrence of the horrors of the Third Reich and the Second World War. The United Nations' Universal Declaration of Human Rights was adopted in 1948 and ratified by most nations of the world. In the decades that followed, country after country adopted domestic bills of rights, guaranteeing fundamental freedoms to all persons. Canada moved to adopt human rights statutes at the provincial and federal level5, followed by the Diefenbaker Bill of Rights and finally, in 1982, the Charter of Rights and Freedoms. Many other countries were doing the same thing. One of the last holdouts, Britain, adopted a quasi-constitutional bill of rights in 2000.
The individual rights guaranteed by the Charter are inspired by our respectful tolerance of the basic entitlements of every person. This is a leitmotif running through the 1982 Constitution Act -- and the provisions guaranteeing individual rights are no exception. It is the implicit condition of the exercise of all rights and freedoms, from the right of all to vote, through the right of dissident speech, to the liberty rights. It finds explicit expression in the equality guarantee of s. 15 of the Charter, which proclaims that "[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability".
Collective Interests
But the Charter did not stop at international rights. True to Canada's values, it also respected our collective interests. Canada's history demonstrates a commitment to a positive partnership between the state and the individual, between the private interest and the public good. Canadians do not typically see the state as the adversary of the individual. By contrast, the United States was born of a Revolutionary war, and emerged as a nation that saw individual rights and liberties as a bulwark against the overweening power of the state. On a scale of values, the individual ranks first, the community somewhat lower. Canada, however, was born not of revolution but of evolution. We have traditionally seen the state not as the enemy, but often as the protector of our rights and liberties. Historically, we have tended to view rights, not as threatened by, but as existing in harmony with collective rights.
Canada's approach to those cases when individual rights squarely conflict with broader collective interests further distinguishes us from the United States. The United States constitution casts rights in absolute terms, making no mention of the need to balance them against the collective interest. Individual rights are portrayed as simply trumping collective interests. The interests of the community must yield in the face of a basic individual right. Does that mean that collective interests never prevail in the United States? Of course not. Rather, the community's interests are accommodated by broadening or narrowing the scope of the individual rights themselves.
In Canada, when individual rights squarely conflict with broader collective interests, s. 1 of the Charter requires balancing the competing interests, candidly and above-board. As Mr. Edward Greenspan put it – not uncritically – in a speech he gave in Washington in 1995:
Our First Amendment -- we call it Section 1, our first words that set the tone for all Canadians to rejoice in our essential freedoms, the words we first read coming out of the starting gate are like a warning on a pack of cigarettes -- Beware! These nice looking sticks kill! It says "People of Canada! Don't get overly excited at what you are about to read. We know this is our Charter of Rights. Soon you will inhale a pack of rights that include freedom of expression, freedom of press, right to a jury trial, the right to fundamental justice (we couldn't even bring ourselves to call it due process). But before you get too excited, we want you to know that all of the so-called guaranteed rights you are about to read are subject to reasonable limits that may be imposed by the government upon you in a free and democratic society. [Edward Greenspan, "Ifs, Buts, and Whereases": Paper Presented at Ambassador's Lecture Series Presentation at the Canadian Embassy, Washington, D.C. on September 26, 1995] (1995) 29 Gazette 212]
Whether one agrees with Mr. Greenspan or not, he makes an important point. The Canadian way, as reflected in the Charter, recognizes that individual rights may conflict with larger societal goals and collective interests. It goes on to provide a way to resolve that conflict, thorough a candid process of justification and demonstration. Through this process of acknowledgment and justification judges can give effect to Ronald Dworkin's exhortation to "get real and come clean: about the values and societal interests that are the true basis for limiting an individual's rights.
Pluralism and Group Rights
A third and final Canadian characteristic recognized by the Charter and the 1982 Constitution Act is our commitment to pluralism and the protection of group rights like freedom of association, language rights, aboriginal rights. The Charter and the Act's related provisions protect individual rights, to be sure. But they go further, recognizing that there are some activities, essential to human flourishing, that can only be protected or nurtured by protecting the group setting in which they take place. Language provides an excellent example: a language can only be spoken with others, by definition. Language rights, in order to be effective, must therefore operate at the level of the group. The only way to protect an individual's language right is to protect the setting in which the language is spoken. This is what is meant by "group rights": rights that can only be exercised through a group.
The Quebec Act of 1791 was the first of many enactments seeking to protect the language and culture of a particular group. The British North America Act of 1867, carried forward special rights to protect the French minority outside Quebec and the English minority within Quebec. To this the 1982 constitutional amendments added recognition of multiculturalism and gender equality, as well as a formal guarantee of Aboriginal rights under s. 35 of the Constitution Act.
Our long tradition of giving special guarantees to certain groups is neither American nor European. Some Americans, those who embrace the ideal of the melting pot, look on our Canadian tradition of special accommodation with a mixture of puzzlement and concern. Thus the distinguished American historian, Arthur Schlesinger Jr., quotes our former Prime Minister, William Lyon McKenzie King, to the effect that Canada has too much geography and too little history, and goes on to argue that Canada's policy of bilingualism has been a mistake destined to weaken the country – a mistake which he goes on to argue that the United States should not make in dealing with its Hispanic minority6. In fact, I would argue that Canada has rather a lot of history, and that accommodation of minority interests are a central part of that history. Recognition of special group interests is bred in our soul. It is the stuff that founded us and the means by which we have managed to stay together. It is not American, to be sure. It is Canadian, and for Canada it has thus far worked.
Nor are group rights part of the European constitutional tradition. European constitutions tend to assume a single ethnic group or volk, defined by shared language and culture. The reality in many European countries belies this assumption and, in some cases, constitutional accommodation has been made – for example, recognition of both Flemish and French groups in Belgium and acceptance of Catalan as an official language in the Spanish province of Catalonia. But generally, recognition of group rights is not as broad in Europe as in Canada. For this reason, one finds interest in the Canadian constitutional model in areas of Europe where cultural strife has become the norm, such as the countries of the former Yugoslavia.
Conclusion
Let me conclude.
In the past two decades, the Charter has been absorbed into the national imagination, as a defining element of who and what we are as Canadians. Indeed, in the past twenty years, the Charter of Rights has become so tightly woven into the fabric of the Canadian identity that, across the country and in every region, it is scarcely possible to form and idea of Canada – of what Canada is, what Canadians aspire to, what values Canadian hold dear – without discovering the Charter of Rights as a constituent element of that idea.
There are only a few things that are so deeply ingrained in the fabric of our national consciousness: hockey, medicare, and the Charter of Rights. The Charter is not merely part of our constitution; elle est entrée dans nos coeurs.
Why has this happened?
I have suggested three answers. First: because the Charter represents our national coming of age, and that, to Canadians, even twenty years later, hold enormous significance. Second: because the Charter represents our own statement of values, made in Canada, by Canadians, to fit Canadians' sense of themselves; and third: because the Charter, not by magic nor by accident but through the nation — affirming process that brought it into being and nurtured it over the past two decades, captures the essence of what we hold dear as a people:
- respect for individual rights;
- respect for the collective interest and harmony between individual freedorm and the greater good of all;
- respect for pluralism and a commitment to the fundamental equality of each and every one of us, religion, gender or ability.
It is too soon to say how this or that Charter decision, this or that Charter doctrine, will stand the test of history. What I do assert tonight is a more modes – yet significant – proposition: we have made a good beginning.
We have a Charter that reflect our most fundamental values, that tells us who and what we are as a people.
We have a Charter that the world admires.
Most important of all, we have a Charter that Canadians in the last two decades have come to embrace as their own. La Charte: c'est à nous. La Charte: c'est nous.
Thank you.
_____________________
Notes
1- K. Makin, "Most still firmly believe in Charter, poll finds" The Globe and Mail (April 6, 2002) at A1.
3- An Act to Amend the Supreme Court Act, S.C. 1949 (2nd sess.), c. 37. Since then, English citations, once dominant in Supreme Court jurisprudence, have dwindled. References to the Judicial Committee all but vanished and seldom occurred outside the context of an appeal dealing directly with the federal-provincial of powers - important when it comes up, but infrequent.
4- R. Sheppard and M. Valpy, The National Deal: The Fight for a Canadian Constitution (Toronto: Fleet Books, 1982) at 135.
5- Saskatchewan's legislation was the first, in 1947. The Canadian Human Rights Act was enacted in 1978. For further details, see W.S. Tarnopolsky, Discrimination and the Law, 2nd ed., Revised by W.F. Pentney (Don Mills: De Boo, 1985), chapters 1 and 2.
6-A.M. Schlesinger Jr., The Disuniting of America: Reflections on a Multicultural Society (Revised and Enlarged Edition) (New York: W.W. Norton & Co., 1998).
Remarks of the Right Honourable Beverley McLachlin, P.C.
Ottawa, Ontario
Wednesday, April 17, 2002
