"Canadians are right to rally around their Charter"
Notes for an address
by the Honourable Stéphane Dion,
President of the Privy Council and
Minister of Intergovernmental Affairs
Keynote address at the conference
The Charter at Twenty organized by York University
Toronto, Ontario
April 12, 2002
Check against delivery
I wonder if there is any country other than Canada where entrenching a charter of rights in the Constitution has been seen as a potential contributing factor of disunity. And yet that was a broadly held opinion 20 years ago, when Prime Minister Trudeau and his Justice Minister, the Right Honourable Jean Chrétien, succeeded in giving the Canadian people a charter of rights and freedoms.
Today, a few days from the 20th anniversary of that event, Canadians’ attachment to their Charter is noteworthy. The polls confirm it. For example, in a poll conducted this year by the Centre for Research and Information on Canada, in response to the question "In general, do you think the Charter [...] is [...] a good thing [or] a bad thing [...]?", 92 % of Canadians (including 91 % of Quebecers) answered that it was a good thing.1
Only ten years ago, a number of political figures and observers saw the Charter as a source of serious division in Canada. The Charter and its interpretation by the Supreme Court, it was said, were at odds with at least three key dimensions of the Canadian reality: our democratic tradition, our federal structure and the Quebec identity. I will look at these three dimensions in turn and show that they have ultimately adapted very well to the addition of a charter of rights and freedoms that benefits all Canadians.
I hope that this will give you some material to launch the debates of this prestigious conference on "The Charter at Twenty". I imagine that was what the Political Science Department and MacLaughlin College at York University had in mind when they honoured me with this invitation.
1. The Charter and democracy
Charters of rights exist to protect individuals and minorities against the unchecked power of the state. And yet I understand full well the fear that charters give the judicial branch too much authority, to the detriment of the legislative and executive branches. No democracy could accept unelected judges acting as legislators and governors in place of the people’s elected representatives.
I can assure you that in my six years of experience at the Cabinet table, I have never felt deprived of my responsibilities by judges and their decisions. I have never had the feeling that judges exceed their authority and encroach on that of elected officials. Moreover, for the government I belong to, the need to comply with the Charter and court decisions is certainly not the constraint that poses the most problems.
The main constraint for a minister, as you well know, is political: if he has what he thinks is a good idea, he cannot implement it without obtaining at least the approval of the Prime Minister. Persuading Cabinet and caucus colleagues, senior officials and affected communities takes up the lion’s share of a minister’s day-to-day work.
The second constraint is financial: it is easy enough to reach agreement with fellow ministers on how to spend your tax dollars when the Finance Minister and the President of the Treasury Board are not there! But once they arrive at a meeting, everyone gets a reality check and has to bow to the need for budgetary discipline.
The third constraint is constitutional: it stems from the division of constitutional powers and responsibilities between the two orders of government. And it is here that, your humble servant, rather than the Finance Minister, who must sometimes be the killjoy. The Intergovernmental Affairs Minister, in collaboration with the Minister of Justice, sees to it that each of his Cabinet colleagues is mindful of the importance of the federal government fulfilling its constitutional role in cooperation with the provinces and respecting their role.
The long tradition of discipline linked to the constitutional division of powers and to oversight by the courts in this respect has likely helped governments in our country, both federal and provincial, to accept the additional judicial control under the Charter since 1982. Admittedly, it has happened that a provincial premier has bemoaned the courts’ "activism" following a legal ruling that displeased him. But I think all governments accept the need to respect the Charter as a legitimate and positive dimension of our political system.
In fact, the political party that is the most critical of the Charter is the one that currently forms Her Majesty’s Loyal Opposition in the House of Commons. But even it dare not advocate repealing the Charter, which would be political suicide, given Canadians’ attachment to this institution that protects their rights.
My experience in government seems to me very much in keeping with what a number of you, following the example of Professors Peter Hogg and Allison Bushell, call a "dialogue" between the Court and the people’s elected representatives.2 A "dialogue" in the figurative sense, of course, as a minister cannot intervene with a judge! But it is true that we make our decisions by anticipating theirs in part. And we are not only reactive; in the process of developing our legislation we play our own role in interpreting and giving life to the Charter. In the event that one of our laws is challenged in court and the Court, after hearing all the arguments, including ours, tells us that we are in violation of the Charter, we manage to find, sometimes even in the decisions themselves, a way to the solutions that will provide necessary remedies.
In my six years as Minister, that is since January 25, 1996, to my knowledge, there have been four instances where a portion of a federal law was struck down by the Supreme Court of Canada.3 In several instances, a provision was interpreted in a manner to comply with the Charter or the Court ruled that a provision was unconstitutional only in part. I can say that, in each of these cases, the Government respected the Court's decision and on two occasions introduced legislative amendments to respond to the Court.4
But I know some of you are not convinced by this dialogue metaphor. Some of you feel governments are at a disadvantage in this "dialogue," for one thing because they cannot end it when they do not like what they hear. And yet that ability to opt out of a court decision is provided for in section 33 of the Charter, the famous override clause which, as you know, allows the Canadian Parliament or a provincial legislature to state expressly in a law that the law will apply in whole or in part "notwithstanding" certain provisions of the Charter; the override is in effect for five years and can subsequently be renewed. In actual fact, as we know, the Charter’s prestige has become so great that all governments are very reluctant to use this override clause.
I would point out, as some of you have, incidentally, that the courts in no way challenge governments’ right to use section 33. Governments’ obvious reluctance to use the notwithstanding clause has nothing to do with legality, but rather with politics. It is based either on a philosophical opposition to the idea of acting notwithstanding the confirmed rights of Canadians – as is the case with the Chrétien government – or on the determination that such a legislative recourse would be too unpopular with voters. But whether it is philosophy or electoral calculations, governments remain free to use the notwithstanding clause or not.
Professor Christopher P. Manfredi of McGill University has written that the notwithstanding clause is tainted with disgrace ever since it was identified in Canadians’ minds with the Quebec government’s use of it in 1988 to enact legislation prohibiting exterior commercial signage in English or any language other than French. According to Professor Manfredi, that move, which was very unpopular in English Canada, tarnished section 33 so much that it made it almost impossible to use: "Unfortunately, the political leaders who took advantage of Quebec’s inclusion of a notwithstanding clause in Bill 178 to condemn section 33 cannot now rely on the legislative override in circumstances where it might be beneficial."5
I must point out that even in Quebec the legal prohibition of languages other than French has never been popular. It has always been opposed by a majority of Quebecers, according to polls. If that measure had been popular in Quebec, the provincial government might have maintained it by reusing the notwithstanding clause once the five-year term had expired.
In short, if governments are loath to use section 33 in their dialogue with the Court, it is because they do not want to use it in their dialogue with Canadians either. There is a political barrier, not a legal one.
As Pierre Elliott Trudeau hoped, the Charter belongs to all Canadians; it strengthens the power of the people in relation to the state. It is true that this power passes through the mediation of judges, but that mediation takes the form of a productive dialogue with the people’s elected representatives. After 20 years of the Charter’s existence, this is the positive finding of the government of Jean Chrétien, the vast majority of Canadians, and, it seems, the majority of our legal experts. But you can debate that for yourselves.
2. The Charter and federalism
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.
That is not what has happened. Professor James Kelly of the Department of Political Science of Brock University has calculated that there have been few "cases where the courts have nullified provincial statutes, and more importantly, [that] the nullifications were not applied in the main fields of provincial jurisdiction."6 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 20017. I do not know whether a federal minister should be pleased about this, but the fact is that the ten provincial governments have been affected less often than the federal government.
The courts have thus strengthened Canadians’ rights in relation to both orders of government, on the basis of the Charter. But in so doing, the courts have preserved the logic of federalism. They have even made it stronger, by creating a case law "which favours diversity and strengthens provincial autonomy,"8 to cite Professor Kelly again.
In effect, the Supreme Court has explicitly recognized "the value of diversity which is at the foundation of the division of powers."9 It confirmed that "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."10 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."11
The Supreme Court 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."12
When the Supreme 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.
Our Charter and our federalism are well matched. This is the positive finding I make on the basis of my own observations and of your work, notably that of Professors James Kelly, Janet Hiebert and Katherine Swinton13. I eagerly await the results of your deliberations on this matter.
3. The Charter and Quebec
It has often been said that the Canadian Charter of Rights and Freedoms would strengthen the secessionist argument in Quebec. This view has been defended by separatist14 and federalist15 authors alike. I have never believed it. I have always felt that the vast majority of Quebecers agreed with the content of the Charter, which incidentally is not all that different in substance from Quebec’s Charter of Human Rights and Freedoms.
The belief that the Charter would be rejected in Quebec stems in large part from the context in which it was entrenched: patriation. The fact that the National Assembly of Quebec has never agreed to support the constitutional amendments of 1982 may have given rise to the belief that the people of Quebec did not approve of the cornerstone of the Constitution: the Charter itself.
The vengeful virulence with which the separatist leaders endlessly repeat their version of the patriation takes up an inordinate part of the debate. Soon they will have us believe that the "night of the long knives" universally refers to Canadian constitutional negotiations in 1981, rather than a bloody settling of scores among Nazis in 1934.
Whatever one thinks of the way in which our Constitution was amended, whichever version one accepts (read, for example, the correspondence between Premiers Lougheed of Alberta and Lévesque of Quebec16), it must be remembered that, according to polls, Quebecers actually agreed with the content of those constitutional amendments. At the time, Prime Minister Trudeau’s constitutional action did not garner disfavour with his fellow Quebecers. His popularity rating even remained higher than Mr. Lévesque’s.17
But above all, it must be agreed that after 20 years it is not so much how a change was made that is important, but rather the effects of that change. At least that is the opinion of Mr. Claude Ryan, who, you will recall, refused to support patriation as leader of the Official Opposition in the National Assembly and would still refuse today. I cite Mr. Ryan, in a book he published just before the 1995 referendum: "Then as now, I do not approve of the way in which this operation was carried out. But thirteen years later on, it behooves us to examine more impartially the objective scope of the changes made in 1982. Looking back, it must be acknowledged that the Canadian Charter of Rights and Freedoms, in particular, is a text worthy of a civilized society. It guarantees the protection of individual rights against the abuses of legislators and governments, without jeopardizing, but better circumscribing, the authority of elected representatives."18 [Translation]
Mr. Ryan also believes that the Court has interpreted the Charter "with distinction, impartiality and humanity."19 [Translation] This seems to be the opinion of the vast majority of Quebecers, as it is for their fellow citizens in the other provinces and territories. The survey by the Centre for Research and Information on Canada that I cited earlier indicates that Quebecers, like other Canadians, generally approve of the major decisions the courts have rendered over the years with regard to the Charter. As the survey’s authors have written: "It would appear that the Charter and the role of the courts are not regionally divisive issues. What’s more, large majorities in every region support Charter principles relating to bilingualism and minority rights, multiculturalism, the acceptability of ‘reasonable limits’ on freedom of expression, and the prohibition of police searches without a search warrant. The Charter does indeed speak to certain fundamental values upon which all Canadians can agree."20
It is striking to see the extent to which Canadians’ approval of the Court’s decisions are not indicative of disagreements between Quebecers and other Canadians. Their opinions are similar, albeit to varying degrees, including on the language issue. For example, while 91 % of Quebecers agree that Francophone Canadians in the majority Anglophone provinces should be entitled to French-language services from the federal government, 73 % of Canadians living outside Quebec share that opinion. You will appreciate that, as minister responsible for coordinating official languages on behalf of the Government of Canada, I am pleased to see this consensus in an area where the Charter has enabled the courts to play a very active and very positive role over the years.
Those who have seen a contradiction between the Charter and the distinct or unique character of Quebec society are quite mistaken. Two former chief justices of the Supreme Court, the late Brian Dickson21 and the Right Honourable Antonio Lamer22, as well as the current Chief Justice, the Right Honourable Beverley McLachlin, have stated that the Court has taken account of that unique character in its decisions. To cite Chief Justice McLachlin: "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 ..."23 [Translation].
We can also cite the Court itself: "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."24
Conclusion
The Canadian Charter of Rights and Freedoms has the support of Canadians, who rightly see it as a strengthening of their rights. The productive dialogue it has helped establish between the judicial branch and the political branch has enriched our democracy. It has given rise to a case law which has deepened the practice of federalism in Canada. It has reflected the rich diversity of our country and respected the Quebec identity. In all these aspects, the Charter has a very positive track record, in contrast to the fears expressed at the outset.
And the Charter has strengthened the Canadian identity. This is not seen as a good thing by some nationalist intellectuals in Quebec. Professor Guy Laforest, for one, has written a great deal to that effect.25 But if it is true that the unity of a country can coalesce around such a noble cause as respect for universal rights, where is the harm in that? Again, as Mr. Claude Ryan has noted, "That this charter was conceived at the same time as a helpful instrument to ground the unity of the country on more solid foundations, is no cause for concern. It is rather something to be proud of."26 [Translation]
Because of my special responsibilities with respect to Canadian unity, I am often asked what it means to be Canadian – other than not being American. My response is the following: for me, to be Canadian means striving to be as universal as possible, it means trying to make our country the one where the rights of all are the most respected, the country where every human being has the best chance to be treated as a human being, regardless of religion or skin colour.
I am not saying that we have succeeded in making Canada that country, I am saying that we must constantly strive toward that goal, and that this quest is the most solid foundation of what we are. Our charter of rights and freedoms offers us a powerful tool for achieving that objective. We are quite right to rally around it.
But I’ll leave you to deliberate on that as well.
NOTES