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Remarks of the Right Honourable Beverley McLachlin, P.C.
Protecting Constitutional Rights: A Comparative View of the United States
and Canada
April 5, 2004
Thank you for that kind introduction.
I found it quite reassuring, especially since judges of the Supreme Court of Canada are frequently described in less flattering terms. One of the less flattering descriptions came from the lips of my colleague, Ian Binnie, who, at a cocktail to welcome our new law clerks, advised the assemblage that their biggest challenge would be to get some fire out of the nine semi-dormant volcanos they were charged with igniting.
Semi-dormant or not, it is a great pleasure to be with you here today to share comparative perspectives on Canada and the United States, more particularly the differences and similarities in how we approach constitutional rights.
This topic requires that I say quite a bit about the Canadian perspective, so I would like to begin with a disclaimer: We Canadians are generally a shy lot, not much given to talking about ourselves. The Canadian penchant for sticking to our own business, narrowly defined, is well illustrated by a story -- true, I have it on good authority -- of an event that occurred on a royal visit to Canada many years ago, shortly after Elizabeth II came to the throne.
When our Queen comes to visit, we like to honour her with unique and useful gifts that reflect the true Canadian character. Over the decades, Her Majesty has become the proud recipient of innumerable native headdresses, dozens of native talking sticks, a grizzly bear, an elk and two Canadian moose.
On this particular occasion, Her Majesty was given two specimens of our national symbol – the beaver. The young Queen, not long married, was ushered into the room containing the beaver tank. As beaver are wont to do, the creatures seemed quite busy. Her Majesty gazed on the two splashing animals with some curiosity. With a puzzled look she turned to the distinguished Canadian gentleman at her side. “What ever are they doing?” The gentleman, with typically Canadian laconism, replied, “Madam, I do not know. I am a bachelor”.
Which brings me to a second disclaimer. My knowledge of Canadian-US comparative law, like the bachelor’s knowledge of beavers, is somewhat limited. Asked to comment on the differences between our respective countries, I would probably do better to say like our gentleman, “I do not know. I am a Canadian”.
Nevertheless, I begin with an anecdote cited by a leading Canadian lawyer, Edward L. Greenspan, in an address some years ago in Washington, D.C. on freedom of expression. Mr. Greenspan described how the American actor, Michael Moriarty, the former star of T.V.'s "Law and Order" said he was so upset with the United States government's interference in free expression, that he was bidding adieu to the United States and moving to Canada. Mr. Greenspan went on to express puzzlement at Mr. Moriarty's decision in these words:
...if Mr. Moriarty decided to come to Canada because Canada is a kinder, gentler country, then he is coming to the right place. If he is coming to Canada because he wants to live in the United Nation's top 1995 pick as the best place in the world to live, he is coming to the right place. If he has an inexplicable urge to pay much higher taxes, he is coming to the right place. If he wants much less crime, much more space, cleaner air and cleaner cities, he is coming to the right place. If he wants much better whisky, better beer, Cuban cigars, a much better view of Niagara Falls, he is coming to the right place. But to rationalize coming to Canada because Canadians have more freedom of expression than the Americans is ludicrous. Mr. Moriarty is coming to the right place for absolutely the wrong reason.
Mr. Moriarty may indeed be mistaken. But on the principle (also cited by Mr. Greenspan) that it is foolhardy to ignore anything an American actor says because it may someday represent government policy, we must assume that there is something about Canada's legal system in general and its treatment of rights and freedoms in particular that Mr. Moriarty found attractive. And on the assumption that you may be as interested as I to find out what it might be, I invite you to follow me through a brief overview of some of the salient differences between the legal systems of our two countries and how they treat the constitutional rights of their respective peoples.
Canada, like the United States, is a federal democracy. We vote for our politicians at federal and state (we call them provincial) elections and if we don't like what they do, we vote them out the next time. Canada, like the United States, has a constitution that guarantees the fundamental rights and freedoms of every person in the country. Since 1982, these guarantees have been found in a constitutional Bill of Rights, which is called the Canadian Charter of Rights and Freedoms. Canada, like the United States, has a system of courts staffed by an independent judiciary and believes in the rule of law. Canada, like the United States, has a jury system for criminal and sometimes civil trials. And many of the rules of evidence and procedure applied by courts on both sides of the border betray striking similarities.
This much the legal systems of our two countries share. Yet there is much, too, that is different. For a start, our structures of government, which determine how laws are made and administered are quite different. Canada, unlike the United States, is a monarchy, headed by the Queen of England (we say the Queen of Canada) and maybe, someday -- who knows-- King Charles the III. Because our head of state is the Queen, when a criminal is indicted in Canada, it is not the State against the accused, or the Commonwealth against the accused, or the people against the accused -- it is the Queen against the accused. Or if you want to sue the Canadian government or one of the provinces, you sue the Queen. Although I doubt it causes her too much concern, the Queen is the most litigious person in Canada by far.
Another difference in the legal structure of our countries is that Canada has a Parliamentary system of government. The leader of the party holding the majority of seats in the House of Commons is the Prime Minister. If he or she loses the majority -- for example is defeated on a major bill like the annual budget -- he or she must step down and the Governor-General, the Queen's representative, calls on someone else, often following a new election, to form the government and become Prime Minister. The Prime Minister chooses his executive -- his cabinet -- from the elected members of the House of Commons, or sometimes members of the appointed Senate. All this is very different from the American system where the Chief Executive, the President, is elected in a separate election and barring impeachment, death or Watergate, rides out his entire term with a cabinet he chooses from anywhere he pleases.
For many people, these differences are cosmetic. Indeed, they may not translate into radically different constitutional outlooks. But let me come to one area where people of both countries not only see important differences but are currently engaged in a vigorous debate about which approach is preferable: I refer to the fundamental freedoms protected by our respective constitutions. The case can be made that Americans and Canadians have different perceptions of the relationship of the individual to the state and as a consequence, a quite different approach to the fundamental freedoms and liberties our constitutions guarantee to each citizen.
To illustrate this difference in approach, I would like to briefly highlight three aspects of the constitutional protection of fundamental freedoms in Canada: First, the Canadian Charter of Rights and Freedoms contains an explicit recognition that rights are subject to reasonable limits flowing from public or collective interests. Second, the Canadian constitution guarantees rights that are intended to recognize minority communities and enhance their vitality. In both respects, the Canadian constitution is a product of Canada’s history. Third, many rights and freedoms in Canada are subject to a legislative override, found in the notwithstanding clause of section 33 of the Charter.
Let me turn, first, to the statement in our Constitution that rights are subject to reasonable limits. To quote Mr. Greenspan yet again:
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.
To make all of this more concrete, let us consider the constitutional protection of free speech in both countries. Canada, like the United States, has a constitutional guarantee of free expression. Our Charter of Rights and Freedoms guarantees freedom of expression, subject to such reasonable limits as are "demonstrably justifiable in a free and democratic society". In other words, we have free speech, but the state can limit it in reasonable ways. This may be contrasted with the absolute language of the First Amendment of the United States Bill of Rights, which states: "Congress shall make no law ... abridging the freedom of speech or of the press." The words of the Canadian guarantee acknowledge the state's right to limit free speech; the words of the American guarantee forbid the state from doing so.
Of course, we all know that the American Supreme Court has not interpreted the First Amendment literally. American rights, however absolutely stated in the Bill of Rights, are in fact subject to limits imposed by the Courts as they struggle to balance conflicting rights and situate them in a practical working framework. Free speech is no exception. In 1952, Justice Hugo Black, who insisted on reading the First Amendment literally, voted to strike down a states' group libel law, stating that the First Amendment "absolutely forbids such laws without any 'ifs' or 'buts' or 'whereases'." (Beauharnais v. Illinois, 343 U.S. 250, 275 (1952)). But he was in dissent and his view has not prevailed.. It was Mark Twain who said of the United States, only partly in jest, "It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience and the prudence never to practice either of them."
This said, the explicit recognition that, in a democratic society, limits may be imposed on fundamental freedoms means that free speech is more narrowly conceived in Canada than in the United States, as is evidenced by our respective positions on pornography, hate speech and defamation. While the American right of free speech admits of some limits in the name of reason or practical necessity, the fact remains that what would be counted as a reasonable limit on speech in Canada would often amount to an unreasonable limit in the United States.
Take pornography, for instance. Much of it is made in the United States. Some of it crosses the border and is sold in Canada. But there are limits to what Canadians will tolerate as protected speech in this area. In 1992, the Supreme Court of Canada in the Butler case upheld a section of the Canadian Criminal Code which banned the publication and distribution of obscene material. The law had been challenged on the ground that it infringed freedom of expression in a way that was not justifiable under s. 1 of the Canadian Charter. The Supreme Court disagreed. It unanimously held that freedom of expression was infringed by this section of the Criminal Code, but added that the state had a right to outlaw pornography which qualifies as an undue exploitation of sex, such as where the portrayal of sex is coupled with violence, involves children, or is degrading or dehumanizing. One of the key concerns was the risk that such pornography may be harmful to women and children and to society generally. In accepting generalized risk as a reasonable basis for limiting free expression, Justice Sopinka of my Court quoted approvingly this conclusion from a House of Commons Committee:
The effect of this type of material is to reinforce male-female stereotypes to the detriment of both sexes. It attempts to make degradation, humiliation, victimization and violence in human relationships appear normal and acceptable. A society which holds that egalitarianism, non-violence, consensualism, and mutuality are basic to any human interaction, whether sexual or other, is clearly justified in controlling and prohibiting any medium of depiction, description or advocacy which violates these principles (R. v. Butler, 1992] 1 S.C.R. 452, at p. 494, citing the MacGuigan Report of 1978).
Some Canadians like the Butler decision, some don't. Mr. Greenspan calls it a "tragedy" and laments by quoting Gershon Legman's observation that "Murder is a crime. Describing murder is not. Sex is not a crime. Describing sex is." In fact, a great deal of talk about sex, pornography included, is legal in Canada, and for every dissenter from Butler, one can find at least one or two supporters who feel the state has a legitimate interest in controlling harmful portrayals of sex.
What may be more interesting than the debate itself is that the Supreme Court of Canada's decision in Butler has caught the attention of the American legal and political world. We in Canada are not used to attention from those quarters, so the ensuing debate on your side of the border about the Butler case came to us as some surprise. Professor Catharine MacKinnon, who happened to teach at Osgoode Law School in Toronto for a time, wrote and lectured extensively in favour of American adoption of a test like that in the Canadian Butler case. Later and more significantly on the political front, we saw Senator Bob Dole and Attorney-General Janet Reno advocating a similar tightening of pornography laws in the United States. But the big question remains, what would the Supreme Court of the United States do with an American Butler? Accepting that anything is possible in Washington, as in Ottawa, the fact remains that traditional American First Amendment thinking is a very long way indeed from the sort of risk of harm-based equality philosophy that prevailed in Canada in Butler.
Free speech plays out differently above and below the 49th parallel in other less publicized yet significant ways. Hate speech finds significantly more protection in the United States than in Canada. Provided hate propaganda laws are tightly enough drafted, they pass muster under the Canadian Charter. In the United States, by contrast, little short of incitement to violence can be legally limited.
To take another example, it is easier to sue for libel in Canada than it is in the United States. Application of the First Amendment's guarantee of press freedom led in this country to New York Times Co. v. Sullivan (376 US 254 (1964)) which permits newspapers to publish false rumours and make false statements about people with impunity so long as they do not do so intentionally or recklessly. A few years ago, the Supreme Court of Canada in Hill v. Church of Scientology expressly declined to adopt the Sullivan approach. As a result, in Canada, newspapers print unverified material at peril of being sued for libel. The Supreme Court considered the argument that a Sullivan approach was required to prevent "chilling" the free dissemination of information essential for the working of democracy. It concluded that any chilling effect flowing from strong libel laws is outweighed by the importance of protecting people's reputations against false and slanderous statements. Canadian law accepts that the goal of getting at the truth may be served by free exchange in the marketplace of ideas. But it also accepts that false words can do great damage to individuals and groups, damage that cannot always be repaired by debate and discussion.
I have spoken of some of the differences in the Canadian and American approaches to the fundamental guarantee of free speech. To put it in a nutshell, we in Canada are more tolerant of state limitation on free expression than are Americans. Similar points can be made about other constitutional rights.
Indeed, in the case of each right guaranteed by our Charter, Canada is creating its own unique jurisprudence. For instance, the Canadian approach is more nuanced than that of the United States in relation to due process and the rights of individuals in the law enforcement context. In the United States, evidence obtained as the result of unlawful police conduct, whether direct or indirect, usually cannot be used in the criminal process under the doctrine of the fruit of the poisoned tree. In Canada, the test is more flexible; the evidence will be excluded only where it would be unfair to allow it to be used against the accused person, considering a variety of factors, including the effect on the image of the administration of justice if the evidence were disallowed. Section 24 of the Charter expressly provides for this.
This brings me to the second difference between the American Bill of Rights and the Canadian Charter. I mentioned earlier the explicit recognition in the Canadian Charter of collective or group rights. Section 1 of the Charter, as we have seen, sets the stage for a different approach to the constitutional protection of rights, an approach that seeks a different balance between individual rights and collective interests. This balance is also at play in the operation of rights that are intended to recognize minority communities and enhance their vitality.
One can already see a hint of this in the different treatment of freedom of religion in the two countries, because the Canadian guarantee of freedom of religion has a positive quality to it that the American guarantee lacks. The United States constitution enunciates a doctrine of separation of church and state which precludes the state from supporting any religion. The Canadian guarantee protects the right of the individual to practice the religion of his or her choice, but also permits the state to support religious groups -- indeed it requires the state to support minority Roman Catholic and Protestant school systems in some provinces as a consequence of the concern of the fathers of Confederation that minority religious rights be protected.
Similarly, Canada’s law of equality may be described as more robust than that of the U.S. Canadian equality doctrine is expressly directed at combatting discrimination and improving the position of members of disadvantaged groups. The categories of discrimination are not limited and we do not accord lesser levels of scrutiny to selected groups. While Americans continued to debate the virtues of affirmative action programs as recently as last year (Grutter v. Bollinger, 536 U.S. 306 (2003)), our Charter expressly affirms the constitutionality of reverse discrimination entailed in affirmative action programs. Ironically, there seem to be fewer affirmative action programs in Canada than in the United States.
In addition to this robust conception of equality, the Canadian Constitution also includes some guarantees whose communitarian dimension may seem peculiar from an American perspective. The Canadian Constitution guarantees, for instance, positive rights to minority language education in French and in English. It includes an explicit recognition of the existing aboriginal and treaty rights of the aboriginal peoples of Canada. At the risk of over-generalization, it might be ventured that, as a general rule, individual rights in Canada are more circumscribed, and collective or “group” rights, protecting linguistic, religious or aboriginal communities, are more generous than in the United States. In the United States the ethic of the individual is foremost; in Canada there is more concern for the general public welfare and members of disadvantaged groups.
The third major distinction in the way our respective constitutions treat rights lies in the legislative override provision found in section 33 of the Charter. Section 33 permits Parliament or a provincial legislature to “override” decisions of the Supreme Court invalidating laws for violation of the Charter. This gives an infringing government two lines of defence. First, the government can argue that the infringement is justified under section 1 of the Charter, as I have already discussed. Second, if that doesn’t work, the government may uphold the infringement by so stipulating in a law. This applies to all rights, with the exception of basic democratic rights, mobility rights and linguistic rights. The override is effective for five years, but can be renewed.
At first impression, the Canadian override provision stands in stark contrast to the absolute finality accorded to the constitutional pronouncements of the United States Supreme Court. In fact, the actual situation in the two countries is not dissimilar, thus far in any event. The section 33 override has only seriously been invoked on one occasion, by the Province of Quebec, to maintain language legislation the Supreme Court had found incompatible with the Charter guarantee of free expression. The Charter enjoys broad popular support, and governments appear reluctant to be seen as depriving citizens of constitutional rights. Only time will tell if section 33 represents, in fact, an important qualification on Charter rights. But at least in theory, it supports the view that the Canadian approach to rights is less individualistic, and more collective and deferential to government, than the American.
I have been discussing three differences in the Canadian and American approaches to the fundamental rights and freedoms of the individual. What can account for these differences? Why should two countries sharing the same continent with roughly the same sorts of people and activities and industries and enjoying an enormous amount of bilateral communication and trade, have a different view of what is important, a different set of values? The answer lies in our distinct national character, which in turn is based on our distinct histories and national experience.
It may be said that a nation's law – particularly its law of rights and liberties – expresses and reflects the fundamental social and moral assumptions upon which the nation is founded, its national character. This national character is not fixed, and is subject to constant redefinition within public discourse. But the boundaries of this discourse are largely shaped by a nation’s history. Canada and the United States have very different histories for all their geographical proximity. Let me allude to three historical differences that I think help explain how we have arrived at our respective approach to the fundamental rights and freedoms of the individual: (1) the difference in how our countries attained independence; (2) the French-English character of Canada; and (3) Canada’s position as a less populous, less powerful nation poised between the United States on the one side and Europe on the other.
The first difference relates to how our countries arose and attained their liberty. The United States arose out of a revolution against colonial authority. Canada, by contrast, arose by evolution. Canada never revolted against its European colonial past, never defied the mother country. As a result the Canadian attitude toward authority and the state is fundamentally different than the American attitude toward authority and the state. Indeed, the different political circumstances of creation of our respective nations are reflected in the tone of our constitutions. The American Constitution begins with the words “We the People...”. The people are virtually absent from the Canadian Constitution, which opens with a formal “Whereas the provinces have expressed the desire to be federally united into one Dominion”.
The heart of our 19th century constitution sets the rules of the game in the allocation of responsibilities to the federal and provincial governments, and there is little concern in there for the checks and balances through which absolute power is constrained in the American Constitution. Canadians agree that state power should be confined within proper bounds. But they do not fear it as Americans do. Canadians did not, initially at least, see the state as something distinct from them, as a locus of power that may be used against them. Consequently, the need for checks and balances on offices of power is not so keenly perceived in Canada as in the United States. For example, the notion of the right to bear arms as the ultimate guarantee against state oppression is mysterious to most Canadians.
This absence of revolutionary tradition is probably the primary reason why Canadians waited more than one hundred years to adopt a bill of rights and why we are comfortable with a Charter of Rights and Freedoms that begins with an acknowledgement of the state's right to limit the basic rights and freedoms. It also explains why the balance between individual rights and the interests of groups or society as a whole is achieved within a different process and discourse.
To put it another way, the United States emerged from its colonial period abruptly and bloodily, with a determination to protect the individual citizen against the tyranny of the state. The individual and the state were – and to some extent, continue to be seen – as potential adversaries whose interests may come into conflict. By contrast, Canada emerged from its colonial period later and more peacefully and gradually. State officials were never cast as possible adversaries of the individual. The relationship between individual and state is more symbiotic. The state is regarded as having the responsibility to create the conditions for individual fulfilment to a greater degree than in the United States. Hence, the Canadian universal medical scheme, widely seen as a pillar of Canadian Confederation. Canadians are more willing than Americans to trust the state, and more willing to blame the state if poverty abounds or medical needs are not met.
The Canadian Charter, adopted only in 1982, represents Canada’s final break with its colonial past. Its content reflects the need to balance collective state interests with individual interests. While some Charter jurisprudence slips into the imagery of the state and collectivity as the holder of power which may threaten the individual, particularly in the area of criminal procedure and the rights of the accused, the dominant theme remains that of the state and individual locked in an inseparable symbiosis.
The second significant historical difference between Canada and the United States is the pluralistic foundation of Canada as compared with the monolithic aspirations of the United States. Canada was born of the union of two groups, one French and one English. It was founded on the premise that both French and English would be entitled to maintain their separate identities, their separate culture, religion and language. The two groups, in conjunction with aboriginals and immigrant communities that came thereafter, found strength not in unity, but in harmonious coexistence. The State’s role in fostering this diversity was ingrained in the text of the Constitution.
The United States, by contrast, was formed in the main from rather different English colonies sharing one language, each seeking the freedom to dissent from the Church of England. They sought strength in unity, and accommodated diversity by committing to a neutral State which favoured no identifiable group. While its peoples vary vastly nowadays (including important visible Black and Hispanic minorities), and while many languages are spoken in the United States, American society, particularly since the civil war, has embraced an ideal of homogeneous citizenship not found in Canada. The United States is likened to a melting-pot; Canada to a mosaic.
The Canadian emphasis on protection for group rights is thus an essential part of our history. It has led to heightened protection for minority groups and contributed to making Canadians more receptive to the notion that sometimes individual rights must give way to the need to protect the rights and the identity of particular groups within society.
The third difference in Canadian history which has affected our notion of individual rights is our position as a middle power, poised just to the north of the most powerful nation on earth. As the smaller and weaker of the two countries which occupy the North American continent, we tend to define ourselves not only positively but negatively in terms of what we are not. We are comfortable with ambiguity. We are less inclined to see issues in terms of irreconcilable positions, more inclined to question and accommodate. We are deeply internationalist. At the same time, our situation has induced zealous concern that we protect our own distinctive culture and way of being. Canada, the small boy on the block, suffers the small boy's apprehension. Not the apprehension of being knocked off the block; our countries have a long history of peaceful coexistence. Rather, the fear of economic and cultural absorption, of being swamped by the larger, louder American forces to the south. All this has affected our conception of rights. Our spiritual situation somewhere between the United States to the south and the European tradition across the Atlantic is reflected in our Charter, a melange of European and American notions.
You have graciously invited me to visit you, and you have come to this talk and listened. It is my humble hope that I may leave you with at least one small idea which may prove of interest. It is this. A nation's law is the sum of its history; and a nation's judges give voice to the values that are the sum of that history. I do not advocate that you adopt the Canadian approach to individual rights; nor do I think we will adopt yours. Indeed, we could not if we wished; for better or worse, Canada is a different country. Its national character is shaped by different events and values. I can, however, assure you of this. We will continue to study your jurisprudence, as you are beginning to study ours, continue to learn from it, and continue to admire it as the most absolute and articulate expression of individual rights the world has yet seen.
Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
2nd Canadian Distinguished Annual Address
Center for the Study of Canada
Plattsburg State University
Plattsburg, New York
April 5, 2004
