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"Is
the primacy of fundamental rights
compatible with respect for diversity?
The experience of Canadian federalism"
Notes for an address
by the Honourable Stéphane Dion,
President of the Privy Council and
Minister of Intergovernmental Affairs
Biennial Conference of the
Russian Association for Canadian Studies
St. Petersburg, Russia
June 29, 2001
Check against delivery
I have met many Canadians in my lifetime with a passion for Russia. I don't know
whether it is your history, your literature, your country's nordicity, its
majestic vastness, a love of hockey..., or a combination of all these
things, but there is something in the Russian soul that fascinates Canadians.
Today, in St. Petersburg, I can see that fascination, but in the opposite
direction: I have an opportunity to meet with Russians who are so attracted by
Canada that they have made it their field of study. We Canadians have a lot to
learn from how you see us. So I thank you very much indeed for inviting me to
this sixth biennial conference of the Russian Association for Canadian Studies.
Just as many reasons can cause a Canadian to fall in love with Russia, I imagine
there are as many factors that have drawn you to Canada as there are
Russian Canadianists here today. But chances are that one of the considerations
that can explain this mutual fascination is that we can see clearly that our two
countries, over and above all that differentiates them, must face the same
fundamental challenge of unity within diversity. Canada's success depends in
large part on its ability to guarantee fundamental rights while respecting
differences among provinces or populations. This is an ongoing challenge for
Canada, from which it draws a great part of its vitality.
Our
two countries are quasi-continents, societies whose complexity defies
imagination. Of course, I am well aware that, in terms of diversity, the Russian
Federation faces more complex challenges than Canada. With barely a decade
of experience of pluralist democracy and an economy that needs rebuilding,
you have to ensure cohesion among your 89 constituent entities following
the process of dissolution that split the Soviet Union apart. In comparison,
Canadian diversity, made up of ten provinces, three territories, two official languages,
Aboriginal peoples and a multicultural population, is expressed within a
well established democracy, one of the strongest economies in the world and a
stable international environment. Nevertheless, your challenge is fundamentally
the same as ours: to establish national cohesion on a foundation of justice
for all and of respect for differences.
I know that much could be said about how things are in Russia, but I do not
profess to have anything to teach you on that score. Instead, I will focus my
comments on Canada.
Unity in diversity is an ethical and philosophical question. I would first like
to talk about my own understanding of it. Then I will use the example of the Canadian
Charter of Rights and Freedoms to demonstrate that respect for universal
rights is fully reconcilable with respect for diversity.
1. Unity in Diversity
If unity in diversity presents a challenge, it is because the opposite
situation, unity in uniformity, may seem at first glance to be more desirable.
Ah!, one can be tempted to think, everything would be so much easier and more
reassuring if only all Canadians - or all Russians - spoke the same language,
had the same traditions, the same cultural references, and lived under the same
laws, without all these variations between provinces or regions which make
everything so complicated.
For
reformers who seek uniformity, there are two ways to eliminate the differences
of language, culture and religion among citizens. The first consists in
actively promoting the assimilation of minorities so as to blend them into the
majority. The second lies instead in putting up international borders between
different populations, so that each one, thus separated from the others, can
form a homogenous country.
As a French-speaking Quebecer, I am all the more sensitive to the import of
these two proposals because each of them, assimilation and separation alike, has
been put forward in our case.
Assimilation: in 1839, a British political leader and diplomat, Lord Durham, in
a famous report that bears his name, recommended, the assimilation of the French
in Canada into the English-speaking population, in the very name of equal
opportunity. To be French in France is only natural, but it is a handicap within
the British Empire, he wrote. To enjoy the same opportunities as their British
fellow citizens, the French in Canada need to assimilate with them, he
maintained, in accordance with the assimilationist liberalism of his time.
Separation: for four decades now, some political parties have been promoting the
political independence of Quebec. One of those parties governs the province at
the moment. Their basic argument is that Francophones in Quebec cannot afford to
remain a minority within Canada, and that the borders of their country ought
rather to stop at Quebec's borders, within which they form a solid majority.
Neither of these proposals is a valid solution. An active policy of assimilation
of an entire population is a source of injustice and cultural impoverishment.
And a policy of separation sets in motion a process of mistrust that can be very
difficult to stop: if the objective is to separate in order to be a majority
within one's own country, why would the minorities in the new country resulting
from separation feel confident within it?
Unity in diversity is a higher ideal than unity in uniformity. This ideal
presupposes that the diversity of experience, language, religion or culture is
welcome as a strength, a wonderful complementarity, rather than a problem to be
rooted out or a threat to be eliminated. That is the full meaning of the
Canadian experience.
For this to work, the following principle must be respected: to accept
confidently any trait of diversity that is compatible with universal
rights. These rights that are valid for all human beings are ultimately not
so difficult to identify. They can be found in the constitutions of all
democracies.
Like ours, your Constitution recognizes the equality of citizens' rights and
individual freedoms: freedom of movement, conscience, belief, expression,
association and assembly. The right to vote, the independence of the judiciary
and a wide range of the other fundamental rights are also entrenched in it. I am
in no way attracted by those theories which claim that these rights are
culturally defined and thus ought not to be extended to all human beings.
I am all the more wary of those theories because they have been proposed about
my own people, including by French-Canadian political leaders. In a famous
speech delivered on February 7, 1939, Camillien Houde, then Mayor of Montreal,
asserted that: "French Canadians in the province of Quebec are fascists
by [Latin] blood if not by name."(1) In
the 1950s, the then-premier of Quebec, Maurice Duplessis, in the name of our own
culture and our distinct character, took measures to limit the rights of certain
religious and political minorities in Quebec. Fortunately, the Supreme
Court of Canada struck down a number of those measures.(2)
In a decision pertaining to one of the measures, Justice Rand, one of the
justices of the Supreme Court of Canada at the time, wrote: "(...)
freedom of speech, religion and the inviolability of the person, are original
freedoms which are [...] the necessary attributes [...] of
human beings."(3) Duplessis complained
that the Supreme Court was like the Tower of Pisa, always leaning in the same
direction. And that is true: it has always leaned towards the side of the
protection of fundamental rights.
But haven't much worse things been said about the Slavic peoples? They could
never open themselves up to democracy, it was said, when your country was in the
grip of totalitarianism. Today, everyone can see how absurd those statements
were: democracy is extending to the Latin, Slavic and Asian peoples; it is
present on every continent.
I have seen refugees of all ethnic, linguistic or religious backgrounds flocking
to Canada, a land of open arms and immigration, fleeing the world's worst
dictatorships. They automatically embrace democracy and fundamental rights. No
cultural barrier prevents them from doing so.
Democracy is universal. It's not a question whether it is made for all of us. Of
course it is. It's a matter of finding our own way of giving it tangible
expression, of ensuring that all these rights contained in our constitutions are
continually better respected in practice.
This does not mean that democracy need take exactly the same form everywhere: on
the contrary. Respect for political and civil rights manifests itself in
different ways. Such differences can be observed between democratic countries,
but also within each one of them, especially among those who adopt a federal
system. When founded on respect for fundamental universal rights, the diversity
of experience and practices can become a very positive force within a
federation.
For example, no democratic federation could approve of one of its constituent
entities banning free elections. No right to be different could justify such a
negation of democracy. This does not mean that voting rules have to be, in
every respect, the same everywhere in all federations. In Canada, as in the
Russian Federation, our constituent entities pass their own electoral laws for
their own elections.
Russian is the only official language of the Russian Federation, but Article 68
of your Constitution allows each of your republics to institute its own official
languages to be used in its state institutions, alongside Russian. In
Canada, language rights are also reconcilable with
differences between provinces.
In Canada, both the sovereignty of the provinces within their own fields of
jurisdiction and the multiculturalism of the population are recognized in the
Constitution. But this does not permit cultural practices that are contrary to
fundamental rights. For example, it would be unacceptable for polygamy or
corporal mutilation to be permitted within one province or for one group of
citizens.
To illustrate further how fundamental rights can be combined with respect for
differences, I am going to use the example of the Canadian Charter of Rights
and Freedoms.
2. The Canadian Charter of Rights and
Freedoms and the principle of federalism
A charter of rights and freedoms was entrenched in the Canadian Constitution in
1982. It recognizes the primacy of fundamental rights and freedoms and
authorizes the courts to strike down, for example, any legislative measure in
violation thereof. Many predicted that the Charter would exert a standardizing
pressure that would prevent the provinces from implementing their own policies
and priorities. It was predicted, mistakenly, that the logic of the Charter
would be contrary to the logic of federalism and that in the name of equal
rights, the decisions and opinions rendered by the Supreme Court of Canada would
gradually bring about the standardization of our laws. Such fear was one of the
reasons that both the government and National Assembly of Quebec refused to
support the constitutional amendments of 1982.
At first, there was such mistrust of the Charter that the provincial governments
demanded and obtained the inclusion of a "notwithstanding" clause.
This provision allows the Canadian Parliament or a provincial legislature
expressly to declare in an act that all or part of a statute shall operate
"notwithstanding" some provisions of the Charter; the exception lasts
for five years and may be subsequently renewed. In actual fact, the prestige of
the Charter has become so great that all governments, including
Quebec's, are extremely hesitant to use this "notwithstanding" clause.
In effect, Canadians quickly came 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 1999 survey by the Institute
for Research on Public Policy on the attitudes of Canadians towards the
courts and the Canadian Charter of Rights and Freedoms, in answer to the
question "Do you think the Charter is a good or a bad thing?",
92% of Canadians (including 93% of Quebecers) were of the opinion that it
is a good thing.
And yet, the Charter has not transformed Canada into a unitary, centralized
country. Indeed, the very opposite has happened. The Charter, and the Supreme
Court's interpretation of it, have marked a deepening of the practice of
federalism, by creating a jurisprudence "that facilitates
diversity and strengthens autonomy,"(4)
in the words of James Kelly, professor of political science at Brock University
in St. Catharines, Ontario. He has calculated that "the number of cases
where the Court has nullified provincial statutes are few and far between, but
more importantly, the nullifications have not taken place in core areas of
provincial responsibilities"(5). In
fact, under the terms of the Charter, the Supreme Court has struck down more
federal statutes than provincial ones.(6)
Admittedly, the Court has struck down some provincial statutes because they were
in violation of the Charter. But it has established that the provinces can apply
different solutions to similar political problems without this leading to
discrimination: "Clearly, in a federal system, province-based
distinctions do not automatically give rise to a presumption of discrimination.
Section 15(1) of the Charter, while prohibiting discrimination, does not alter
the division of powers between governments."(7)
For example, the Court has ruled that, in all provinces and territories, police
officers are required to inform accused persons of legal aid services available
to them, as the right to retain and instruct counsel without delay and to be
informed of that right is fundamental; but, in accordance with the practice of
federalism, it has recognized that these legal aid services may vary from one
province to another.(8)
When the Court has struck down provincial legislation, the net effect has often
been to strengthen diversity within each of those provinces. By recognizing
the right of the French-speaking minorities in the English-speaking provinces to
manage their own schools and school boards, or by requiring the
Alberta government to prohibit discrimination based on sexual orientation,
or by recognizing rights to Aboriginal peoples, the Court has not homogenized Canada;
on the contrary, it has strengthened its heterogeneity.
In the case of Quebec, the Court has taken into account its distinct character,
as two former chief justices and the current chief justice, the Right Honourable
Beverley McLachlin, have explicitly acknowledged. The Court does not ignore the
very particular context of this province, where Francophones and Anglophones
alike are entitled to ask for linguistic protection. Francophones are certainly
the majority in Quebec, where they form 82% of the population, but they are a
minority within Canada and a very small minority within North America. Quebec
Anglophones are certainly part of the majority on the North American continent
and within their country, but not within their own province. The Court has
ruled, 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 nevertheless not be justified in prohibiting English or other
languages.
In short, the Court ruled that "[...] what may work in one province (or
in part of it) may simply not work in another without unduly interfering with
the legislative scheme"(9). It
explicitly recognized "the value of diversity which is at the
foundation of the division of powers"(10).
Conclusion
I have tried today to demonstrate how our two federations, in spite of all the
things that differentiate them, are facing the same challenge: guaranteeing the
primacy of the fundamental rights while respecting the diversity of the country.
I believe I have shown that this reconciliation is not only possible, but also
desirable.
Federalism fosters competition of ideas, the plural quest for better ways of
doing things, mutual assistance and respect, all values that are compatible with
democracy and that nourish it in return. The ongoing quest to uphold these
values impels us constantly to build on the different forms of democracy. I have
sought to show that, in Canada, the Canadian Charter of Rights and Freedoms,
and the Supreme Court's interpretation of it, have
instilled our federalism with a new vitality that respects both justice
for all and the diversity of solutions, contexts and needs.
Rousseau stated: "Wherever I see what is beautiful, what is good, what
is true, that is my country." Tocqueville wrote: "I should
regard it as a great misfortune for mankind if liberty were to exist all over
the world under the same features." I believe, like Rousseau, that
there are universal rights, which are valid for all human beings, but at the
same time I think, like Tocqueville, that the quest for these rights must be
plural.
It
is in that spirit that I look forward to fruitful cooperation between our two
federations. This cooperation will notably take the form of a Joint
Statement of Cooperation on Issues Concerning Federalism that will be
released next week in Moscow. Long live our two federations!
Notes
1. The Gazette
(Montreal), February 8, 1939.
2. See Thomas R. Berger, Fragile
Freedoms: Human Rights and Dissent in Canada, Toronto, Clarke, Irwin &
Company Limited, 1981, pp. 157-159 and 179-186.
3. Saumur v. La cité de
Québec [1953] 2 S.C.R. 329, in Berger, Ibid, p. 181.
4. Kelly, James. "The
Impact of Charter Review on Canadian Federalism and Provincial Autonomy:
Re-examining the Centralization Thesis," paper presented at the Annual
Meeting of the Canadian Political Science Association, University of Sherbrooke,
June 1999, p. 31.
5. Kelly, James, Ibid,
p. 30.
6. Professors F. L. Morton,
Peter. H. Russell and Troy Ridell determined that in the first decade of Supreme
Court jurisprudence under the Charter, 23 federal statutes were nullified while
18 provincial ones were declared invalid, in Morton, F.L., Russell, Peter H.
and Troy Riddell, "The First Decade of the Charter of Rights,
1982-1992: a Statistical Analysis of Supreme Court Decisions," paper
presented at the Annual Meeting of the Canadian Political Science Association,
University of Calgary, June 1994, quoted in Janet Hiebert, "The Charter
and Federalism: Revisiting the Nation-Building Thesis," in Canada:
the State of the Federation, Douglas M. Brown and Janet Hiebert, eds., Kingston,
Institute of Intergovernmental Relations, Queen's University, 1995, fn.14. And
according to James Kelly, : "( ...) in the 1990 to 1998
period, twenty-two federal statutes were nullified in comparison to fourteen
provincial statutes in the same time frame," op. cit.,
p. 12. See also Katherine E. Swinton, The Supreme Court and Canadian Federalism:
The Laskin-Dickson Years, Toronto, Carswell Publishing, 1990, pp. 342-343.
7. Haig v. Canada
[1993] 2 S.C.R. 1046.
8. Kelly, James, op. cit.,
pp. 26-29.
9. R. v. Edwards Books and
Art Limited [1986] 2 S.C.R. 802.
10. R. v. S.(S.) [1990]
2 S.C.R. 288.
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