This year marks the 30th anniversary of the creation of the Charter of Rights and Freedoms. No matter where you sit, there is agreement that the Charter has had a huge impact of the country. In the following three commentaries, we look at its affect on our society, and specifically on language and Aboriginal rights.


Rights and freedoms guaranteed
by Jamie Benidickson

Any Canadian who has enjoyed the experience of finding him or herself all decked out in underwear and holding a hand-gun – or, more to the point – of being found by police in such circumstances, will appreciate the virtues of the Charter of Rights and Freedoms. This almost inconceivable situation, repeatedly described in newspapers across the country not long ago, might suggest that Charter beneficiaries represent a highly idiosyncratic constituency.

But the ranks of the momentarily foolish are not closed. So, rather than simply (and misguidedly) chuckling about a constitutional entitlement to bear arms in one’s Stanfields, Boxers, Jockey Shorts or equivalent, we may want to reflect more sympathetically on the Charter’s 30th anniversary.

The Charter, in force as of 17 April 1982, guaranteed certain rights and freedoms. These include fundamental freedoms such as freedom of association, of peaceful assembly, of religion and of expression. Democratic and mobility rights were also secured, together with a cluster of legal rights. The latter category encompasses, among other safeguards, the right to life, liberty and security of the person, freedom from unreasonable search and seizure, the presumption of innocence, the right to a fair trial, and freedom from cruel and unusual punishment. The latter was in issue in the case of our unfortunate gun-holding, underwear-clad fellow citizen. Equality rights provisions came into effect in 1985. The overall constitutional package also contained distinctive provisions respecting the justification of limits on certain rights (Section 1) and a carefully circumscribed override or “notwithstanding” clause (Section 33).

Brian Dickson, who presided as Chief Justice of the Supreme Court of Canada over the early years of Canadian Charter jurisprudence, welcomed the Charter. However, as reported by his judicial biographers, “he worried that the Canadian judiciary was ill-prepared for the challenge it presented.” Of course they were ill-prepared, quite understandably so.

Who indeed would be prepared for the challenge elegantly summed up by the Hon. Patrick Healy of the Quebec Court: “The transformation of parliamentary democracy to a constitutional democracy imposed upon the courts the burden of judicial legislation.” And it was in the fulfilment of that burden – an obligation to assess the operation of legislation against Charter principles – that a judge concluded that a fixed minimum sentence of three years although stipulated by Parliament was inconsistent with freedom from cruel and unusual punishment as entrenched in the constitution.

How Charter principles have been elaborated and applied over 30 years involves some consideration of the pathways of doctrine and interpretation and some awareness of evolving social conditions. Evaluations oriented around Supreme Court judges have also proliferated.

In speeches and in early judgments, Chief Justice Dickson demonstrated a profound personal commitment to the potential of the Charter for securing such foundational values as democracy, social justice, freedom and human dignity. Echoing the 1982 constitutional changes that brought the Charter into effect, he offered regular reminders that any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Easier said than done.

Among Chief Justice Lamer’s contributions, his work in the realm of criminal procedure is often noted. Commentators have underlined Lamer’s resolute determination to search for a suitable balance between the powers of the Crown, on one hand, and the rights of an accused person such as the right to silence or the right against self-incrimination. He is credited with an effort to engage this balancing at the systemic level as well as in relation to a particular legal rule. And, of course, the Charter plays no small part in that elevation, certainly when it is remembered that Charter violations that bring the administration of justice into disrepute might result in the exclusion of relevant evidence. Lamer fully appreciated the challenges embedded in this powerful remedial possibility.

Those who favour the exclusion of evidence insist upon fair police conduct as an essential pre-condition of respect for the administration of justice. Yet excessive exclusion may equally undermine the repute of the administration of justice when courts appear to be setting the guilty free on the basis of mere technicalities or procedural violations. Lamer affirmed that it is “sound theory to stipulate that we will admit or exclude unconstitutionally obtained evidence on the basis of how it affects respect for criminal justice.”  He acknowledged, however, that “it is one thing to adopt a standard and quite another to apply it,” for this requires post-Charter courts “to determine how to actually measure the repute of the administration of justice in the context of real cases.”

Chief Justice McLachlin said of Justice Claire l’Heureux Dube that “compassion and concern for the vulnerable, disenfranchised is … a theme woven throughout her remarkable jurisprudence,” adding that her former Supreme Court colleague was also a champion of contextual decision making, an approach that “requires judges to examine issues in their full social context and with awareness to how they impact people’s lives.”

The context and impacts that courts now examine with great care and consideration are, as we know, infinitely varied, and have already included claims about entitlements to legal services; the deductibility of child care as a business expense; the disclosure of media sources; procedural safeguards for refugees; and assisted suicide; not to mention the overlay of national security concerns and international relations in criminal matters.

Some observers consider the country to have been transformed by the Charter into a society that would not recognize itself: we had freedoms, fairness, a constitution, language and aboriginal rights before.

What have we gained?

If there was awareness of rights and freedoms – and there was – it is enhanced in the Charter era. If there was understanding of rights and freedoms – and there was – it is refined. If there was debate about rights and freedoms – and there was – it is has been sharpened. If our rights and freedoms were visible – and they could be found on placemats in coffee shops – they are more visible. They have become standard items in the daily news. The ongoing Charter conversation, thoughtfully guided by a conscientious judiciary, contributes importantly to our continuing national journey.

Jamie Benidickson teaches Canadian and international environmental law, water law, sustainable development law and legal history at the University of Ottawa. He is also director of the IUCN Academy of Environmental Law.

Language rights: Ensuring justice
by Graham Fraser

In 1965, as the late Quebec premier Jean Lesage travelled across Canada, he repeatedly told the story of two engineers: an English Canadian in Vancouver, and a French Canadian in Montréal. Each is offered a promotion to move to the other city.

“For the English Canadian promoted to Montréal, it’s just an ordinary move. He can accept without hesitation. His children will go to school as usual, their lives will not be changed,” Lesage said. “But for the French Canadian promoted to Vancouver, it’s a terrible choice. If he accepts, his children must give up their language.”

For most of the 20th century, that was the situation. French-language education had been eradicated in Manitoba, Alberta, Saskatchewan and Ontario – and had never really existed in British Columbia.

At the time that the Canadian Charter of Rights and Freedoms was debated in the 1970s and early 1980s, there were arguments over provincial autonomy, Quebec’s distinctiveness and the risk that a Charter would Americanize Canadian institutions. Some nationalists in Quebec have made the argument that section 23, which defines the right to access to minority-language education, was “the last attempt to anglicize Quebec.”

Now, 30 years on, it is possible to see the impact that the Charter has had on language rights. To begin with, the children of Lesage’s mythical engineer could not only attend French school in any province; that school would be managed by a French-language school board.

But the effect of the Charter has been more sweeping than simply restoring language rights to education that had been wiped out by the Manitoba Schools Act in 1890, the creation of the provinces of Alberta and Saskatchewan in 1905 and the adoption of Regulation 17 in Ontario in 1912.

Exactly 70 years after Regulation 17 abolished French as a language of instruction in Ontario, the Charter enshrined the equality and status of English and French, and began a process giving rights that had been formulated as individual rights a collective dimension.

Section 16.1 refers to the equality of the English and French linguistic communities in New Brunswick; section 20 refers to “significant demand” and section 23 not only includes the right to a minority language education, but establishes the right of the community to manage the school where numbers warrant.

Parliament significantly revised and strengthened the Official Languages Act in 1988 to make it consistent with the Charter, establishing that English and French are both languages of work for public servants in designated bilingual regions, and introducing the notion of positive measures for the growth and development of minority language communities.

Perhaps even more dramatically, in 1999, the Supreme Court established a clear principle concerning the protection of official language minorities.

“Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada,” wrote Justice Michel Bastarache in R. v. Beaulac. “The objective of protecting official language minorities, as set out in s. 2 of the Official Languages Act is realized by the possibility for all members of the minority to exercise independent, individual rights, which are justified by the existence of the community. Language rights are not negative rights or passive rights; they can only be enjoyed if the means are provided.”

The Beaulac judgment set the stage for a series of decisions both by the Supreme Court and by Parliament that broadened the nature of language rights, and deepened the obligations of government institutions to protect them.

First, Parliament amended the Official Languages Act in 2005, making the requirement that federal institutions take positive measures for the growth and development of minority language communities a binding obligation.

Then, in the DesRochers case, the Supreme Court concluded that simply making services available to the minority based on the needs of the majority is not sufficient to meet the obligations laid out in section 20 of the Charter, and in Part IV of the Official Languages Act.

Finally, in Solski (2005) and Nguyen (2009), the Supreme Court required the provinces to be more flexible in establishing who has the right to attend minority language schools.

In each case, parliamentarians and the Supreme Court have acted to ensure that language rights are not simply individual rights, but also collective rights; these rights are not in place simply to protect a single person, but to ensure the vitality of minority language communities across the country.

The result is something that Jean Lesage could not have imagined when he travelled across Canada in 1965.

Graham Fraser has been commissioner of Official Languages since 2006. A well-known and respected journalist and author, he has reported on issues affecting Canada and Canadians.

 

Aboriginal rights: An unfulfilled promise
by Bob Watts and Vanessa Watts-Powless

The past 30 years has not lived up to the promise that the Charter of Rights and Freedoms and indeed the patriation of the Constitution held for the Aboriginal peoples in Canada. The recognition and respect for our rights and freedoms is far less evident today than what seemed possible then.

The somewhat good news is that Section 25 of the Charter has served as an effective shield against the intrusion of Euro-Canadian laws and values while we rebuild our communities and nations harmed by the years of colonialism.

Since the Charter has been in place we have seen the equality rights of Aboriginal women recognized through Bill C31, which is best known for restoring “Indian Status” to women who lost status through marriage; sadly it seems to mean that they are now eligible to be legally treated as poorly as all status Indians by the federal government. The Corbiere court case pitted Section 15.1 of the Charter against residency provisions of Canada’s Indian Act. The court decision gave the franchise for off-reserve First Nations peoples to vote in First Nation elections and will, we believe, help break down the myth that our people lose their rights when they leave the reserve.

By attempting to define Aboriginal rights within the limits of cultural customs and practices, the state acts to prevent an equitable process for addressing the devastating losses of land. Interestingly, Section 25 of the Charter states that its rights and freedoms “shall not be construed as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada.” This is both an all-encompassing yet necessarily vague claim in that Aboriginal rights are not defined but that indeed these rights, however they may be defined, shall not be subject to its impositions.

This section provides somewhat of a shield from the unknowns of what might have been without this protection, yet it also is so vague that is forces Aboriginal peoples and communities into the Canadian court system (given the fear of a political process to do so) to have these rights defined so that they may be protected. This forces Aboriginal communities to pay millions of dollars to in essence ask Canada to define what our own rights actually are.

We have witnessed decades of the government developing guidelines and legislation to support a multicultural mosaic within Canada. The attempt to absorb Aboriginal populations under the blanket of multiculturalism has been yet another attempt to assimilate Aboriginal peoples into the values of Canadian society. Both the myth of the two founding nations represented by bilingualism in the Charter and multiculturalism represent flawed attempts to rewrite the history of Canada absent Aboriginal nations and frame a future absent Aboriginal nations.

So is the question why or why not the Canadian Charter of Rights and Freedoms? Integral to this inquiry is what defines the antagonistic relationship between the state and Aboriginal peoples and their rights.

Values underscoring the rights of individuals and the collective are where this departure begins. As a “liberal democratic” nation, Canada must place the right of the individual as paramount to that of the collective. This type of positioning defines the collective as threatening to the freedoms and rights of the individual.

In Aboriginal communities, it is the maintaining of the collective that is viewed as central to the success and development of the individual. The two are interdependent and mutually respected. Forcing this fundamental principle of the collective into a value system that ultimately must distort this relationship in order to maintain its own principles of individual freedoms, means that once again Aboriginal communities are being asked to operate under the guise of a foreign system.

The key challenges as we begin to work through the next 30 years are for the courts to try and restrain themselves from shaping Aboriginal governments through their interpretation of the Charter and for governments to begin the long awaited process to address the right to self government.

The federal government knows that the key ingredient for the success of Aboriginal peoples is the recognition and implementation of their rights, in particular the right of self-determination. Sadly they seem content to ignore this simple premise while watching the gap in the standard of living between Aboriginal peoples and the rest of Canada continue to widen. Canada’s constitutional framework as evidenced by the intentions of the Charter is big enough to accommodate our rights. The question is: does Parliament have the will?

Bob Watts is an adjunct professor and Fellow in the School of Policy Studies at Queen’s University. Vanessa Watts-Powless is a doctoral candidate in the Department of Sociology at Queen’s University.