"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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