"The Canadian Charter of Rights and Freedoms at Twenty: The Ongoing Search for Balance Between Individual and Collective Rights"
Notes for an address
by the Honourable Stéphane Dion,
President of the Privy Council and
Minister of Intergovernmental Affairs
Speech delivered at the
Director’s Forum
Woodrow Wilson International
Center for Scholars
Washington, D.C.
April 2, 2002
Check against delivery
The Canadian Charter of Rights and Freedoms, this great achievement by Pierre Elliott Trudeau and his then-Justice Minister, the Right Honourable Jean Chrétien, now Prime Minister of Canada, is not nearly as old as your Bill of Rights. It will be only 20 years old this coming April 17.
Of course, Canada was a liberal and constitutional democracy well before 1982. But it has been just two decades since we, your neighbours to the North, have been able, like you, to avail ourselves of rights entrenched in a constitutional document to ask the courts to strike down federal or provincial laws that would violate our fundamental rights.
It is easy to find some similarity between the Canadian Charter of Rights and Freedoms and your Bill of Rights. They both contain the same traditional basic rights: freedom of expression, assembly, movement and so on. There is nothing surprising in this similarity, as fundamental human rights are ultimately the same everywhere and, in addition, the American experience has inevitably influenced Canadian legal thought.
But appreciable differences can be noted as well. The most striking is the recognition, in the Canadian Charter of Rights and Freedoms, of collective rights benefiting notably linguistic minorities and aboriginals, a recognition which is not found in your constitutional text.
If our legal texts differ, and if the solutions we find are not always the same, the way we look at the question of reconciling individual rights and collective rights is, ultimately, not really that different. This is what I want to demonstrate today. I will show that the consideration of collective rights in the Canadian Charter and in Canadian law in general is delimited by the paramountcy of individual rights, in a way not unlike the practice of your courts.
1. The importance of collective rights in Canadian law
By collective rights, I mean rights which, while often retaining the form of individual rights, are essentially justified by the interests of a minority group. It is the belonging to a group that gives access to these rights. For example, in the majority Anglophone provinces and territories, the right of parents to enrol their children in a French-language public school takes the form of an individual right: it is exercised by those parents without their having to obtain the authorization of the minority language group to which they belong. But at the same time it is a collective right: parents have this right because they belong to that group. They cannot exercise that right unless the number of Francophone children warrants having a school. And the justification for that right has everything to do with the objective of preserving the existence of the group in question.
Arising from the specific historical context of Canada, these collective rights, recognized in the Charter, confirm or establish language rights, aboriginal rights, and the multicultural character of Canada. The Supreme Court of Canada accords them great importance, to the point that it places respect for minorities among the four fundamental organizing constitutional principles of Canada, alongside federalism, democracy and the rule of law.1 In the Court’s words, "The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities."2
To highlight this importance accorded to collective rights, I will look at the interaction, now 20 years old, of the Canadian Charter of Rights and Freedoms and three aspects of Canadian society: federalism, official languages and the aboriginal population.
Twenty years ago, many Canadians believed that the logic of the Charter would run counter to that of federalism and that, in the name of equal rights, the decisions and opinions rendered by the Supreme Court of Canada would gradually lead to the uniformization of laws to the detriment of the autonomy of the provinces. The fear that the Charter would make Canada uniform was one of the reasons why neither the Government nor the National Assembly of Quebec agreed to support the constitutional amendments of 1982.
This tension between the unifying pressure of charters of rights and states’ quest for autonomy is a reality you know well. While a charter of rights applies to the citizens of the country as a whole, excluding no province or state, the federal structure of government implicitly recognizes collective rights at the level of the federation’s components. In all federated states, we find, although to varying degrees, some measure of divided sovereignty, which is a means of giving a political and legal existence to specific identities that have a territorial form.
My own observations convince me that in Canada the collective rights attached to federalism have adapted well to the Charter and the courts’ interpretation of it. Of course, armed with the Charter, the courts have strengthened Canadians’ rights relative to their two orders of government. But the logic of federalism has been preserved, and even strengthened.
It can be seen that the Charter and the Supreme Court’s interpretation of it have marked a strengthening of the practice of federalism, by creating a case law "which favours diversity and strengthens provincial autonomy,"3 in the words of James Kelly, political science professor at Brock University in Ontario. He has calculated that "there have been few cases where the courts have nullified provincial statutes, and more importantly, the nullifications were not applied in the main fields of provincial jurisdiction."4 In fact, federal statutes have been invalidated by the Supreme Court under the Charter more often than provincial statutes: 35 times compared with 20 between 1982 and 2001.5
In the Court’s words, "what may work effectively in one province (or in a part of it) may simply not work in another without unduly interfering with the legislative scheme."6 The Court has explicitly recognized "the value of diversity which is at the foundation of the division of powers."7 For the Court, "the principle of federalism recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction."8
It has certainly happened that the Court has invalidated provincial statutes because they violated the Charter. But it has established that the provinces can apply different remedies to similar political problems without this producing discrimination: "Clearly, in a federal system, province-based distinctions do not automatically give rise to a presumption of discrimination."9
When the Court has invalidated provincial statutes, the net effect has often been to strengthen diversity within each of those provinces. In granting Francophone minorities in the Anglophone provinces the right to manage their schools and school boards, or in requiring the Alberta government to ban discrimination based on sexual orientation, or by recognizing the rights of Aboriginal peoples, the Court has not made Canada uniform, but has on the contrary strengthened its heterogeneous nature.
Canada has one majority Francophone province, Quebec. I am convinced that, contrary to the oft-expressed fear of some Quebec nationalists, the Canadian Charter of Rights and Freedoms has not weakened that province’s distinct character, far from it.
As the Supreme Court has stated, "The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. This is the case in Quebec, where the majority of the population is French-speaking, and which possesses a distinct culture."10
The Court has taken account of Quebec’s distinct character, as explicitly acknowledged by two former chief justices, the late Brian Dickson11 and the Right Honourable Antonio Lamer12, as well as the current Chief Justice, the Right Honourable Beverley McLachlin, who has stated: "I think it is clear, from a number of our decisions, that we try to be sensitive to all regions of Canada, but of course Quebec has a very unique history [...]"13. The Court does not ignore the very specific context of this province, where both Francophones and Anglophones are entitled to call for linguistic protections. Francophones are certainly the majority in Quebec, where they make up 82% of the population, but they are a minority in Canada and a very small minority in North America. Anglophones in Quebec are certainly in the majority on the North American continent and in their country, but not in their province.
Regarding the issue of language, the Canadian Charter of Rights and Freedoms strengthens the constitutional protections afforded to Canada’s two official languages, French and English. In particular, it grants educational rights to minority populations belonging to these two language groups, Anglophones in Quebec and Francophones in the other provinces and the northern territories.
The Supreme Court of Canada has made a liberal and dynamic interpretation of those language rights, giving them the form of genuine affirmative action programs. In its decisions, it has affirmed that these language rights exist, among other things, to redress past injustices, based on the premise that substantive equality requires that official-language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to provide a standard of education equivalent to that of the official-language majority. This is why, for example, the Court has ruled that, in specific circumstances, linguistic minority schools may be justified in receiving higher per-capita funding than majority schools, given the additional constraints placed upon them.14
It is not merely a question of maintaining both official languages, but also of ensuring that "each language flourishes, as far as possible, in provinces where it is not spoken by the majority."15 And it is not merely a question of languages, but also of "their respective cultures."16 The Court has established that language rights require government action in order to be implemented and consequently create obligations for the state.
To gauge the full importance of collective rights in Canada, one must naturally take into consideration those recognized for aboriginal peoples. "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed," reads section 35 of the Constitution Act, 1982. Section 25 of the Charter states that all of the rights and freedoms therein do not "abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada." These provisions have been interpreted by the courts in a way that gives them a broad scope. Legal challenges involving aboriginal and treaty rights have, incidentally, grown exponentially in 20 years.
In addition, the Court has confirmed by its decisions that the Government of Canada has a fiduciary relationship with the aboriginal peoples of Canada at the constitutional level, and that the Government has a specific responsibility toward them which differs from the relationship the Government maintains more generally with all Canadians.17
2. Collective rights are not absolute
Rights of constituent entities, rights of linguistic minorities, rights of aboriginal peoples – we can see that collective rights are heeded in Canada, both by the Charter and in practice by the courts. The importance given to them is nevertheless delimited by the paramountcy of individual rights.
For example, in the case of Quebec, while, as I noted earlier, the Court recognizes the need to take measures to protect the French language, it has added that these measures were legitimate only in some circumstances and under some conditions. It has found, for example, that, while it is legitimate for the Government of Quebec to require that French be highly visible, and even predominant on commercial signage, it would not be justified in banning English or other languages. It is noteworthy that the Court made that decision not only on the basis of the Canadian Constitution, but also in reference to Quebec’s Charter of Human Rights and Freedoms, which is good proof of the compatibility of Quebec’s legal approach with that of the country as a whole.
Similarly, the recognition of collective rights and treaty rights for aboriginal peoples is not absolute and is limited by the consideration of other rights. As the Supreme Court has stated, "It has frequently been said that rights do not exist in a vacuum, and that the rights of one individual or group are necessarily limited by the rights of another. The ability to exercise personal or group rights is necessarily limited by the rights of others."18
The Charter’s application to aboriginal peoples is a subject of debate within the aboriginal community itself. While some groups such as the Native Women’s Association of Canada have expressed their full support for the application of the Charter, others have argued that it should not impose non-aboriginal values. Putting the emphasis on the rights of individuals, they argue, runs counter to the importance of collective rights in aboriginal societies.
The Government of Canada considers it important that agreements on self-government, including treaties, must contain a provision stipulating that the Charter will apply to aboriginal governments and institutions in respect of all matters within their respective jurisdictions and authorities. The recent final agreement concluded with the Nisga’a provides an example of the Charter’s application to agreements on self-government. It ensures that the Charter will apply to all activities of Nisga’a Government, not only to laws passed by it but also, for example, to other activities such as decisions to hire individuals or to issue permits.19
So the Charter applies, but not in a manner that is inflexible and blind to the rights of aboriginal peoples.
3. Consideration of collective rights: Similarities between the United States and Canada
I have just reviewed some of the legal debates which, I am sure, will remind you of some of the questions that are also asked in your country. For example, the question of knowing to what extent the obligation to respect the Bill of Rights ought to apply to tribal councils has been raised in the United States. If I understand correctly, this has been the case only since 1968, with the Indian Civil Rights Act.20
More generally, I believe your case law has established the principle of respect for minorities even in the absence of explicit provisions in this sense in your Constitution.
In fact, your courts have interpreted your Fourteenth Amendment, which guarantees to all equal protection of the laws, as a prohibition on making legislative distinctions between groups of persons, unless such distinctions can be founded on a legitimate legislative intention.21
Similarly, although the American Constitution does not contain provisions similar to subsection 15(2) of the Canadian Charter, which explicitly authorizes affirmative action programs,22 such programs have received the support of American courts. But they have considered them with a caution similar to Canadian practice. They have insisted on "the need for careful judicial evaluation to assure that any congressional program that employs racial or ethnic criteria to accomplish the objective of remedying the present effects of past discrimination is narrowly tailored to the achievement of that goal."23
As you know better than I, American jurisprudence has resulted in the recognition of the sovereignty of aboriginal groups – Native American Tribes – as "domestic dependent nations,"24 according to the terms used by Chief Justice Marshall in 1831. Since 1898, Puerto Rico has existed as a commonwealth federated to the United States and the right of its citizens to use the Spanish language as an official language has been affirmed. The indigenous inhabitants of Guam and Hawaii also exercise collective rights over land use and language.
Although the question of language rights is not mentioned in the American constitutional text, "this has not stopped the U.S. judiciary from finding protection for language in the Fourteenth Amendment. In the areas of voting, education, and judicial proceedings, U.S. courts have held that there is a positive duty on the state to accommodate the needs of language minorities."25 But there are also efforts to impose English as the sole official language.
In short, you have debates similar to ours, despite the difference of contexts and legal texts. This shows the extent to which reconciling individual rights and collective rights brings us to a universal debate, the terms of which I will now try to delineate.
4. Reconciling individual rights and collective rights in a liberal democracy
In a liberal democracy, the law must be founded first and foremost upon individual rights rather than on collective rights. This is because only flesh-and-blood individuals have a tangible existence; they alone are capable of feelings, freedom, happiness. Collective entities are but abstract representations in comparison with the tangible individual. Values must thus ultimately be vested in the individual, rather than society. Society exists for individuals, not the other way round. Consequently, the primary objective of a constitution and a charter is to protect the individual against the arbitrariness of the state and abuses of others.
That being said, the law must also protect the capacity of the citizenry as a whole to form a society together. It is generally acknowledged that the rights of each cannot be exerted in the absolute, independently of their consequences for society as a whole. Section 1 of the Canadian Charter of Rights and Freedoms thus specifies that the rights set out in it are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
Although your Constitution, including your Bill of Rights, does not contain any equivalent provision limiting rights and freedoms for considerations of public interest, this is precisely the reasoning sometimes taken by your courts. For example, it is noteworthy that your First Amendment provides that "Congress shall make no law [...] abridging the freedom of speech or of the press," according to Professor Walter S. Tarnopolsky, "The U.S. Supreme Court has repeatedly and consistently recognized that there are limitations to that right which are reasonably justifiable."26
I believe it is quite generally acknowledged that individual rights take precedence but can be limited by a rule of law for the good of society as a whole. But can they also be limited for the good of specific communities within society?
Individuals in society maintain or develop affinities from the fact that they share tastes, beliefs, interests or that they have common traits. Some of these affinities are based on ethnicity, race, language, culture or religion, and find expression in collective identities. Others are based mainly on sharing the same territory over generations and are rooted in local or regional identities. Sometimes, all these sources of identity converge, mutually reinforce each other, and take the form of specific national identities within the society as a whole.
In this way, a society includes minorities of different kinds, and these minorities are inclined to believe that constitutions and charters exist not only to protect individuals against the unfettered power of the state, but also to protect minorities against the domination or negligence of the majority.
These groups tend to want special protection in law for two reasons: external protection and internal restriction, in the words of the Canadian philosopher Will Kymlicka.27 The first is a need for protection against society as a whole. The second is the desire to control the members of the group in question so as to preserve the internal cohesion of the group, its homogeneity. But these two concerns, especially the second, risk leading to practices contrary to the respect for individual rights. They can create inequalities and discriminations between the members of the group and the rest of society, just as they can erode the freedom of the individual members of the group.
In the face of these special claims by groups calling for a system of rights that would not be accessible to other members of society, I believe that the attitude of a liberal democracy must be to agree to modulate the exercise of rights to better take into account the elements of diversity which are compatible with universal rights.
I am convinced of the existence of these universal rights: freedom of conscience, freedom of expression, and so on. Indeed, they are found in different forms in the constitutions and charters of rights of democratic countries and international conventions. I feel no attraction whatsoever to theories that claim that these rights are culturally defined and thus ought not to be extended to all human beings.
Nevertheless, the existence of these basic universal rights is not incompatible with the recognition that specific groups may require specific legal protections. When it is based on the respect of basic universal rights, the diversity of experiences and practices can become a very positive force.
For example, no democratic federation in the world could approve of one of its constituent entities banning free elections. No right to difference could justify such a negation of democracy. This does not mean that electoral rules must be the same in every respect in all federations. Our provinces and your states pass their own electoral laws for their own elections. Your states even pass their own laws for federal elections, with admittedly controversial results at times.
In Canada, the Charter of Rights and Freedoms recognizes the multicultural nature of the population. But this does not authorize cultural practices contrary to basic rights. It would be unacceptable, for example, for polygamy or corporal mutilation to be permitted for a group of citizens.
Conclusion
Although the United States and Canada share in part the same constitutional heritage (including the Magna Carta, of 1215), the American Bill of Rights does not include the explicit recognition of collective rights found in the Canadian Charter of Rights and Freedoms. We have seen that, despite this difference in the texts, the legal practices of the two countries tend to give precedence to individual rights while taking collective rights into consideration.
The differences between the two texts stem in large part from the fact that they were written in very different historical contexts. In effect, the Bill of Rights is a product of the debates of the Enlightenment, inspired notably by the individual liberalism of John Locke. The Canadian Charter, in contrast, was written in the late 20th century, a time when pure individualism had been modified both by other values and by a more sociological understanding of society. The Canadian Charter was also born in a country that has traditionally heeded the interests of minorities, a tradition grounded in the fundamental political structure of the country. This political structure pre-dates Canada’s Confederation in 1867, and touches on various aspects, including language, religious schools and aboriginal rights.
But the original texts do not lock the country into the status quo. Just as your case law gradually gave a legal existence to collective rights, Canada has adapted its law to new realities. Thus, Canada has come closer to your perception of the relationship between the law and religious affiliation. While the American First Amendment strictly prohibits an official church or religion, the Canadian Constitution has never contained such a prohibition. Governments in Canada can provide direct funding to some denominational schools but not to others. At the time of Confederation, in 1867, the rights guaranteed to Catholic and Protestant separate or denominational schools were considered to be essential. That was still the case in 1949, when Newfoundland and Labrador joined the Canadian federation. It is less so in the Canada of today, and those special denominational systems were discontinued by constitutional amendment in the provinces of Newfoundland and Labrador and Quebec. I had the honor of sponsoring those constitutional amendments in the Canadian Parliament in 1997.
I believe I have shown that there has been a certain convergence of both countries toward a legal conception which, while giving precedence to individual rights, takes collective interests into consideration. But there has been another convergence: just as Americans cherish their Constitution, Canadians have quickly come to see the Charter as one of their most fundamental institutions. It has become very popular throughout the country, including in Quebec. For example, in a survey conducted in 2002 by the Centre for Research and Information on Canada, in response to the question: In general, do you think the Charter of Rights and Freedoms is a very good thing or a bad thing for Canada?, 88% of Canadians (including 91% of Quebecers) felt it was a good thing.28
I think Canadians are right. In Canada as in the United States, the individual and collective rights established by constitutional texts and case law are more than ever key elements in the quest for a more just society.
NOTES