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"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
- Reference Re Secession of Quebec,
[1998] 2 S.C.R. 217, at par. 32.
- Reference Re Secession of Quebec,
[1998] 2 S.C.R. 217, at par. 81.
- Kelly, James, B. "The Impact of Charter
Review on Canadian Federalism and Provincial Autonomy: Re-examining the
Centralization Thesis", paper presented to the Annual Conference of the
Canadian of Political Science Association, University of Sherbrooke, June
1999, p.31.
- Kelly, p. 30.
- Kelly, James, B. "The Supreme Court and
the Charter: Advancing Federal Diversity," paper presented at Managing
Tensions: Evaluating the Institutions of the Federations, School of
Policy Studies, Queen’s University, Kingston, Ontario, November 2-3, 2001,
p. 11.
- R. v. Edwards Books and Art Ltd.,
[1986] 2 S.C.R. 713, at par. 193.
- R. v. S. (S.), [1990] 2 S.C.R. 254.
- Reference Re Secession of Quebec,
[1998] 2 S.C.R. 217, at par. 58.
- Haig v. Canada, [1993] 2 S.C.R. 1046.
- Reference Re Secession of Quebec,
[1998] 2 S.C.R. 217, at par. 59.
- In a speech delivered on June 1, 1996 to the
members of the Military and Hospitaller Order of Saint Lazarus of Jerusalem,
Grand Priory of Canada, Winnipeg, Manitoba.
- In an interview with the Toronto Star,
August 28, 1999.
- La Presse, November 6, 1999, p. B12.
- Mahe v. Alberta, [1990], 1 S.C.R. 342.
- Mahe v. Alberta, [1990] 1 S.C.R. 342.
- Mahe v. Alberta, [1990] 1 S.C.R. 342.
- Dawson, Mary. Governing in a Rights Culture.
2001, 14 S.C.L.R 14 (2d), p. 264.
- R. v. Marshall, [1999] 3 S.C.R. 533, at
paras. 552-553.
- Paragraph 9 of Chapter 2 of the Nisga'a
Final Agreement provides for the application of the Charter. This
paragraph reads: "The Canadian Charter of Rights and Freedoms
applies to Nisga'a Government in respect of all matters within its
authority, bearing in mind the free and democratic nature of Nisga'a
Government as set out in this Agreement."
- Kymlicka, Will. Multicultural Citizenship:
A Liberal Theory of Minority Rights. Oxford: Clarendon Press, 1995, p.
38.
- Bender, Paul. "The Canadian Charter of
Rights and Freedoms and the United States Bill of Rights: A
Comparison". McGill Law Journal, Vol. 28, No. 4 (1983), p. 848.
- The Canadian Charter of Rights and Freedoms
Subsection 15(2) reads: " Subsection (1) does not preclude any law,
program or activity that has as its object the amelioration of conditions of
disadvantaged individuals or groups including those that are disadvantaged
because of race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability. "
- Fullilove v. Klutznick, 448 U.S. 448
(1980). Cited in: Bender, p. 853.
- Cherokee Nation v. State of Georgia, 30
U.S. (5 Pet.) 1 (1831).
- Campbell, Gordon Scott. "Language
Equality and the Charter: Collective Versus Individual Rights in Canada and
Beyond". National Journal of Constitutional Law, Vol. 4
(1994), p.29.
- Tarnopolsky, Walter S. "The New Canadian
Charter of Rights and Freedoms as Compared and Contrasted with the American
Bill of Rights". Human Rights Quarterly 5, No. 3, p. 266.
- Kymlicka, Will. Multicultural Citizenship:
A Liberal Theory of Minority Rights. Oxford: Clarendon Press, 1995, pp.
35-38.
- Environics – Centre for Research and
Information on Canada, February, 2002.
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