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The charter at 20
Philip Saunders, CBC News Online | April 2002
Some say Pierre Trudeau intended the Charter of Rights and Freedoms to unify Canadians. Others say it only helped to further divide us along linguistic and regional lines. Some say the charter has done more to help Canadians define themselves as citizens. After 20 years, is the charter an important tool, or just another tiresome source of controversy for most Canadians?
Prime Minister Pierre Trudeau looks on as Queen Elizabeth II signs Canada's Constitution on April 17, 1982
CP picture archive (Ron Poling)
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"The charter is mostly a lawyers’ game and a talk show game. You aren’t going to help society recover and service democracy by playing lawyer and talk show games," argues Professor Peter H. Russell, who wrote Constitutional Odyssey, about Canada's road to constitutional patriation and the resulting crises of Meech Lake, which died on the floor of the Manitoba legislature in 1990, and Charlottetown, which died at the hands of Canadian voters in 1992.
But Russell, an emeritus professor at the University of Toronto and a leading Constitutional historian, also says he isn't sure about the charter's unifying quality. "I don’t think anybody knows if it helps us cling together as a nation," he says.
Patriation. Now What?
When the constitution was brought to Canada from Britain in 1982, then-prime minister Pierre Elliott Trudeau fought to include the Charter of Rights and Freedoms.
"You can't overlook that Mr. Trudeau was a constitutionalist in the sense that he believed very strongly that constitutions with an entrenched charter of rights that would be protected by the courts are an important element of what it means to live in a free society," says former Ontario premier Bob Rae.
But provincial governments feared that the charter would take away some of their power, so eight premiers demanded the inclusion of a clause that allowed, with some restrictions, an exemption for provincial governments that deemed a charter right incompatible with their own laws and jurisdictions.
What came to be known as the "notwithstanding clause" has since been used by Quebec to allow provincial French language laws to function. Ironically, Quebec is still the only province that has not signed the Constitution. Many sovereigntists still refer to the betrayal of Quebec by the rest of Canada during the 1982 constitutional negotiations as a touchstone for separation.
So the charter had a direct impact on Quebec language rights, but what impact has the charter had on the rest of Canada?
The Supreme Court of Canada |
A Matter for the Courts
Peter Hogg, Dean of the Osgoode Hall Law School at York University in Toronto specializes in teaching students about the charter. He lists three crucial cases that have been heard by the Supreme Court, which has struck down more than 70 laws as a result of the charter since 1982.
- Oakes explained how judicial review should proceed regarding Section 1, which restricts its use to "...reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
- Morgentaler decriminalized abortion
- Vriend confirmed equality rights for gays and lesbians
Dr. Henry Morgentaler |
Alan Borovoy, general council with the Canadian Civil Liberties Association, points to another decision that was important for his group.
"You had the striking down of school prayer and religious instruction in the public schools in Ontario,” says Borovoy. "We had been fighting that program for years in the political arena and had made some progress, but it was a judicial decision that finally knocked it out of the curriculum. Those cases never even went to the Supreme Court of Canada, those decisions were made by the Ontario Court of Appeal."
Canada's charter has also affected how people entrench rights internationally. Peter Hogg says it has had a major influence on the way several democratic countries have selected their own bills of rights.
"Canada has been a strong model, for example, influencing the bill of rights adopted by South Africa, Israel and New Zealand. Britain has simply accepted the European convention on civil and political rights, but I think that one reason it did that was because of the Canadian model," says Hogg.
Life in Canada
Most agree that the impact of the charter on Canadian life could not have been foreseen. It has guided the way Canadians relate to each other, dramatically changed the way we relate to the criminal justice system, enflamed a drive for regional and minority rights and placed broad powers into the hands of an appointed judiciary.
Alan Cairns is a professor of political science who has published several volumes on Canada's Constitution and is regarded as a leading academic on the politics of charter rights and charter federalism. He says that Canadians have simultaneously been unified and fragmented by the charter.
"It has become, to a huge majority of Canadians – including those within Quebec, the fundamental constitutional instrument which they identify," he says, "So it has transformed the psyche of Canadians. This document is not just an external arrangement of rules by which we live, this is an attempt to transform who we are and who we actually feel and think we are. On the whole I think it has had that effect.
"The initial federal government premise was on developing a pan-Canadian identity. Though that has happened, it has also kind of fragmented our identity because the disabled and other groups will look to Section 15 on equality rights and others would claim various sections as their own. The women's movement, for example, claim Section 28 as theirs, they won it and prevented the notwithstanding clause from ever being applied to it."
Bob Rae says Cairns is wrong. Rae negotiated for Ontario at the Charlottetown constitutional conference in 1992 which sought to bring Quebec into the fold, give aboriginal people a stronger position, reform the Senate and heal regional disparities through a social union. Rae admits Charlottetown was defeated because too much change was tried all at once. Still, he doesn't believe the charter fragments Canadians.
"The charter is a protection of civil liberties and functions as a symbol for all Canadians," says Rae. "Prior to the charter, most constitutional issues were about federal or provincial jurisdiction, and post-charter, the jurisprudence and the focus has moved towards something else, or towards individual and group rights. I think the charter resonates with all Canadians because it's a constitutional expression of freedom and this is a very important value for Canadians."
Peter Russell |
Recent academic polling bears this out. A survey of 2,000 Canadians in 1987 and 1999 conducted by several academics, including Peter Russell, University of New Brunswick's Paul Howe and the University of Toronto's Joe Fletcher, found 82 per cent of Canadians think the Charter of Rights and Freedoms is a good thing. This number was slightly lower in Quebec at around 64 per cent in 1987 while rising to more than a 70 per cent approval rating in 1999. The surveys were published in a volume called Judicial Power and Canadian Democracy.
A poll done in February 2002 backs up these findings. The poll, conducted for the Centre for Research and Information on Canada, found that 88 per cent of Canadians felt the charter was good for Canada.
A Growing Attachment
Though the charter has been a source of endless debate and academic discussion, the appetite for this seems insatiable. Experts seem to agree that after 20 years the charter is an increasingly well-loved document and a vast majority of Canadians seem to like it.
On the 20th anniversary of the charter, legal experts like Peter Hogg and drafter Roy McMurtry are appearing at a conference in Toronto called The Charter at Twenty. It seems, as academics, politicians, lawyers and, yes, journalists too, talk about this defining document, it has come to mean so much to so many Canadians – whether we know it or not.
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 QUOTES |
The charter "was an attempt to quite directly transform our very identities."
– Alan Cairns, leading academic on the Charter of Rights and Freedoms
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"The charter is mostly a lawyers game and a talk show game. You aren't going to help society recover and service democracy by playing lawyer and talk show games."
– Peter H. Russell, author of Constitutional Odyssey
READ MORE
"Minorities are vulnerable in a system of majority rule (and) it is desirable to have constitutional guarrantees to protect minorities."
– Peter Hogg, dean of the Osgoode Hall Law School at York University
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"There hasn't been a single piece of law that has been passed that doesn't take the charter into account."
– Bob Rae, former Ontario premier
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Bill C-36 is "an infringement of the charter because it goes beyond what is reasonably necessary to protect the interests that (the law is) entitled to protect."
– Alan Borovoy, Canadian Civil Liberties Association
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