Statement made on 24 April 2012 by Senator James Cowan
Hon. James S. Cowan (Leader of the Opposition):
Honourable senators, thank you for agreeing to expedite the launch of this inquiry to draw the attention of the Senate to a remarkable event that took place 30 years ago last week: On April 17, 1982, Her Majesty Queen Elizabeth, Prime Minister Trudeau and then Justice Minister Jean Chrétien signed the Charter of Rights and Freedoms. Finally, after more than 100 years, Canada's Constitution was truly Canadian, and finally Canadians had a constitutionally enshrined Charter setting out the fundamental rights and freedoms of all of us — rights and freedoms that no government may violate.
Some Hon. Senators: Hear, hear.
Senator Cowan: An entire generation has grown up never knowing their country without the Charter. It is easy to be complacent and to take its guarantees for granted. I want to take a moment to read a passage from a speech that Mr. Trudeau gave while serving as Prime Minister Pearson's Minister of Justice, at the Constitutional Conference of February 1968. Even then, he was convinced that Canada needed a constitutionally entrenched Bill of Rights. He said:
I have been asked what need there is in Canada for a Bill of Rights. My answer is that our need may not be so great as is that of persons in some other countries. But my answer as well is that we should not overemphasize our righteousness. We are not in this country innocent of book-burning or banning legislation, or deprivations by law of previously guaranteed minority language rights, of legal expropriation which at times appears to be more akin to confiscation, of persons arrested in the night and held incommunicado for days. We have no reason to be complacent. How many Canadians know that Canadian law permits evidence to be introduced by the police in criminal trials no matter how illegally that evidence may have been obtained? Apart from confessions, for which there are elaborate rules to ensure that they are voluntary, incriminating evidence —
— and this is 1968 —
— is admissible in our courts no matter how obtained. It may have been gained by fraud; the law-enforcement agencies may have stolen it; they may have obtained it without a search warrant, or by means of breaking-and-entering private premises. To the great credit of the police forces of this country, these tactics are seldom employed. But do we wish to live in a country where they may be employed? And where, on occasion, they are employed? Where one standard of conduct is expected of citizens and another permitted of government agencies?
I do not, and it is my guess that the great number of Canadians do not.
Mr. Trudeau was right, and that is why Canadians have overwhelmingly embraced the Charter.
From its inception, the Charter was viewed as the "people's package." It was not something that was imposed from on high. In fact, Canadians turned up in unprecedented numbers to engage in drafting the text. Professor Lorraine Weinrib, the highly respected professor of law at the University of Toronto, described what happened at the time:
In publicly televised parliamentary hearings . . . representatives of a wide spectrum of the Canadian public lined up to identify infamous breaches of the liberal democratic values of liberty, equality and fairness. One after another, public interest groups derided the negligible level of protection afforded to fundamental rights and principles under the Canadian Constitution, the statutory Bill of Rights, and the common law. They demanded a strong Charter to prevent repetition of egregious denials of liberty, equality and fairness to the wide range of Canadians they represented. The government welcomed this friendly fire. Amendments quickly replaced a number of weak and deferential provisions.
Writing last week in the Ottawa Citizen, Andrew Cohen called it a "carnival of democracy" and "a glorious exercise to cover" as a journalist. The special committee — which was co-chaired by our colleague Senator Joyal, then a member of the other place — sat for 56 days of televised hearings, hearing 914 individuals and 294 groups. By the way, for those of us who have been accustomed in recent years to seeing ministers appear for sometimes less than an hour, it is interesting to recall that then Minister of Justice Jean Chrétien testified before the committee for more than a hundred hours, explaining the meaning of key words and sections.
Senator Mercer: Now, that is open democracy.
Senator Cowan: As he wrote in his book Straight from the Heart: "It was a hell of a test." However, I believe the Charter benefited from that demanding process — and as a consequence, so have we all.
Professor Weinrib wrote:
If democratic engagement constitutes the touchstone of political legitimacy, as those who opposed the Charter contended, then Canada's new Charter, with its expansive guarantees and stringent limitation clause, enjoyed considerable legitimacy. The wide array of public interest groups that participated in the final drafting of these clauses functioned in many respects as the constituent assembly that Canada had never had.
Today, the Charter has become one of the most important symbols of Canadian national identity. An Environics poll in the fall of 2010 found the Charter was the second highest ranked national symbol for Canadians — our health care system was number one. The Charter was considered more important even than the flag and our national anthem. That is how deeply it is now etched in our national consciousness.
Indeed, I noticed last week that someone was offering a special free smartphone app for the Charter, complete with a menu of the different categories of rights and freedoms protected by it. They said they were doing this "to help celebrate the thirtieth anniversary of the adoption of the Canadian Charter of Rights and Freedoms."
There have been reports in recent days that Prime Minister Harper decided not to mark this anniversary of the Charter because he is sensitive to the concerns of Quebecers about the Constitution. I suspect many Quebecers would wish that instead of sitting out last week's celebration in supposed deference to their constitutional concerns, the Prime Minister would sit down with the Quebec government and work out present-day differences on issues like the gun registry, approaches to youth criminal justice and Senate reform.
Some Hon. Senators: Hear, hear.
Senator Cowan: Perhaps he would even hold a first ministers' meeting.
In fact, a CROP poll last October found that an overwhelming majority of Quebecers, 80 per cent, said that patriation of the Constitution was a good thing. Fully 88 per cent supported the Charter. With similar support across the country, is it really asking too much for the Prime Minister of Canada to join Canadians in celebrating this anniversary?
The Charter was truly transformative in our nation's history. In 1982, then Minister of Justice Mark MacGuigan said that the Charter was, as he described it, the "most significant legal development in Canada in the 20th century." That was not long after the Charter was signed.
On the tenth anniversary of the Charter, then Chief Justice Antonio Lamer exuberantly said that the Charter had produced "a revolution on the scale of the introduction of the metric system, the great medical discoveries of Louis Pasteur, and the invention of penicillin and the laser."
Most recently, just last week, Louise Arbour, former Supreme Court justice, former UN High Commissioner for Human Rights, and now President and CEO of the International Crisis Group, wrote that "the most significant political event of post-Second World War Canada may be the enactment of the Charter of Rights and Freedoms." She continued: "It has transformed a country obsessed with the federal-provincial division of powers and enabled it to address its diversity in a substantive, principled way."
Honourable senators, why is the Charter so beloved by Canadians? Why does it elicit such extravagant praise? Undoubtedly, it is largely because of the particular rights and freedoms that are enshrined. A number of my colleagues will be speaking to the profound impact of individual provisions of the Charter, but I believe there is something more. It is the pride in knowing that our country stands absolutely for certain fundamental principles, which no individual government may take away — knowing that the courts stand ready to defend those principles, those fundamental prices and freedoms, that they are not held on sufferance or by the good grace of the majority of the day, but by right, under the Constitution itself.
I will admit that I am often surprised when some members of the Conservative Party speak disparagingly of provisions of the Charter. The Charter is the bulwark against government interference into the private lives of Canadians. It is the defender of our personal freedom. I should have thought that this was the ultimate Conservative value, especially for a government so intent upon defending individual freedom against government that it abolished the mandatory long-form census because it allegedly was too intrusive and coercive for Canadians to endure any longer. Sadly, this does not appear to be how those in power today truly view the relationship between government and citizens. Ask the environmental organizations about their freedom to speak out these days against government policies. However, that is another debate.
In the meantime, the members of the Harper government prefer to gloss over the impact of the Charter. They try instead to highlight the contribution of Conservative Prime Minister Diefenbaker and the Bill of Rights.
I recognize and applaud the good efforts of Prime Minister Diefenbaker. I have always acknowledged his visionary contributions to Canadian life. The problem is that the Bill of Rights was an ordinary act of the Parliament of Canada. It never fulfilled its promise. It simply was not an effective vehicle to protect the fundamental rights and freedoms of Canadians, but it was a good beginning.
At the outset of these remarks I quoted Prime Minister Trudeau from 1968 on some of the reasons Canada needed a constitutionally entrenched charter. Let me give honourable senators one more example, from just a few years before the Charter was negotiated and signed.
In 1974, the police in Ontario raided a tavern in Fort Erie. During the raid, they physically searched almost all of the 155 patrons and subjected the 35 women present to strip and body cavity searches. The result? The police snared all of six ounces of marijuana, most of which, by the way, was located on the floor of the tavern and not on anyone's clothing or inside body cavities.
The Honourable Marc Rosenberg, Justice of the Court of Appeal for Ontario, wrote about this case in an article that examined the impact of the Charter on criminal law on the occasion of the twenty-fifth anniversary of the Charter. This is what he said at that time:
The point of the Fort Erie story, of course, is not that the police acted foolishly or with an excess of zeal but that they acted completely lawfully. The Charter, however, changed that. With the enactment of section 8 — the guarantee to protection against unreasonable search and seizure — writs of assistance and other broad statutory powers of warrantless search were struck down.
The Charter was revolutionary, to use Chief Justice Lamer's word, not just for Canadian law, but as a constitution among constitutions as well. It broke new ground in several ways, most notably with section 1, which guarantees the rights and freedoms prescribed in the Charter "only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." There is also section 33, the legislative override, the so-called "notwithstanding" clause.
These were groundbreaking provisions at the time and highly controversial. The result was to provide a new path, an alternative to legislative supremacy along the Westminster model, on the one hand, and judicial supremacy along the American model, on the other.
Professor Weinrib described it this way:
The Charter's structure of rights protection linked a relatively expansive catalogue of guaranteed rights, coupled with a stringent and principled limitation clause, to a legislative override clause applicable only to some of the guarantees. Thus, the courts acquired a new constitutionally dictated judicial function. Similarly, the override clause vested in Canada's legislatures a new constitutionally dictated political function.
Honourable senators, one of the biggest debates that still rages about the Charter is whether Parliament has ceded too much power to the judiciary or, conversely, that governments today abdicate their responsibilities to address the tough questions, leaving it to the courts to decide under the Charter. Certainly, reasonable people can hold different views over whether, buttressed by the courts' responsibility to uphold the Charter, governments have become too timid or passive on controversial issues. However, surely it is wrong to blame the Charter for a government's timidity.
In my opinion, the Charter strikes a careful balance between judicial and legislative power that takes traditional parliamentary supremacy and adapts it to a new order with a constitution that is supreme and transfers a measure of power to each and every Canadian. The limiting words in section 1, and the ever-present option of invoking section 33, have acted to open up what Peter Hogg has called "the Charter dialogue between the courts and legislatures." In a famous article, he wrote the following:
In considering the legitimacy of judicial review, it is helpful to think of such review as part of a "dialogue" between judges and legislatures. . . . Thus a judgment can spark a public debate in which Charter values are more prominent than they would have been otherwise. The legislative body is then in a position to decide on a course of action — the re-enactment of the old law, the enactment of a different law, or the abandonment of the project — that is informed by both the judgment and the public debate that followed it.
We are not the United States; we have a different system and our Charter reflects that. In contrast to our neighbours to the south, where some argue that their constitution is to be interpreted according to the original intent of the founders, back in the 1700s, here we have a concept of the constitution as a living tree. Our courts have, thankfully, not been politicized. Our Supreme Court is considered, as John Ibbitson said in a recent Globe and Mail article, "an exemplar in balancing constitutional and legislative powers, a role the American Supreme Court lost after Republicans and Democrats turned it into an ideological battleground."
In fact, this Charter, which broke new ground in 1982, has become a model for nations around the world. Two American professors, David Law and Mila Versteeg, recently conducted an extensive study in which they looked at 729 constitutions adopted by 188 different countries from 1946 to 2006. Their analysis concluded that the U.S. Constitution, long considered the model for the world and justifiably called a "gift to all nations," in fact is declining in influence. They concluded that one of the likeliest heirs to the throne as "the primary source of inspiration for constitution-making in other nations," as they described it, is none other than Canada. They stated:
A stark contrast can be drawn between the declining attraction of the U.S. Constitution as a model for other countries and the increasing attraction of the model provided by America's neighbor to the north, Canada.
The Charter was the leading influence upon the drafting of the South African Bill of Rights, the Israeli Basic Laws, the New Zealand Bill of Rights and the Hong Kong Bill of Rights, among others. Several scholars have concluded that Canada is at the forefront of a "new Commonwealth model of constitutionalism."
Law and Versteeg headed their chapter on the Charter's influence: "Is Canada a constitutional superpower?" No wonder Canadians are so proud of what was achieved 30 years ago last week.
The Constitution we forged is today influencing the world. The extensive negotiations and direct input of hundreds of Canadians and Canadian organizations have combined to create something now looked to by other nations as a model to follow. What a tribute to the wisdom of Canada's political leaders 30 years ago, spearheaded by the leadership of Pierre Trudeau and Jean Chrétien, but achieved because of the concerted efforts of leaders of diverse political parties and regions — Roy McMurtry, Richard Hatfield, Bill Davis and Roy Romanow, to name a few.
Honourable senators, I know there are some today who deride so-called "soft power." I take great pride in knowing that one of Canada's greatest gifts to the world is our Charter — its ideas of fundamental rights and freedoms, of balancing respective powers in a federal state, and judicial and legislative powers — ideas of basic respect and a just society.
Law and Versteeg wrote:
All other things being equal, the more democratic that a particular country happens to be, the more that its constitution will resemble that of Canada.
They say that:
Some countries may be especially prone to borrow from the Canadian Charter of Rights and Freedoms because they perceive themselves as sharing the same goals and values as Canadian society, or because they are exposed to a greater than average degree to Canadian legal thought. . . .
What a tribute — what a great legacy.
Yes, the thirtieth anniversary of achieving what many thought would prove impossible is indeed cause for celebration. It is a time to pause and reflect on how far we have come as a nation and what we have come to represent to the world.
Honourable senators, I must tell you that I cannot comprehend why the Harper government has chosen not to mark this occasion with something more than a perfunctory press release. Is this government not proud of the Charter? It celebrates our military achievements — including spending $30 million to celebrate the War of 1812 — but it could not bring itself to mark the thirtieth anniversary of the Charter. In sending our men and women to places like Afghanistan and Libya, is not one of our goals to introduce to those countries the rights and freedoms we cherish here at home? When we support our military, we do so in no small part because of the Canadian values those who serve so honourably protect.
Some Hon. Senators: Hear, hear!
Senator Cowan: At the centre of those values they defend is the Canadian Charter of Rights and Freedoms.
As I have said, I am very disappointed that the Harper government has decided that the thirtieth anniversary of this Charter is not worthy of a celebration, but I suspect the reason has as much to do with Mr. Harper's approach to governance as it has to do with any particular aspect of the Constitution itself.
I have described how the Charter was the product of extensive hearings and public debates where the Minister of Justice testified for more than 100 hours before a parliamentary committee and where hundreds upon hundreds of individuals and groups presented their views.
What has happened since then to the wide array of diverse public interest groups that, as Professor Weinrib described, functioned as the constituent assembly Canada had never had — that made the Charter the "people's package"? The Harper government has systematically worked to diminish their voices. Many have seen their public funding cut or eliminated — "defunded" in Harper-speak. This government was very clear that it would not support groups doing "advocacy" — women's and other groups were not to speak out and dare to argue with the government. Most recently, government members opposite have attacked charitable organizations that represent thousands of Canadians across the country. These organizations have been maligned as acting against Canadian interests, as being infiltrated by foreigners and indeed, to use Senator Duffy's phrase, of being "anti-Canadian."
We all remember how, as one of the first acts, the Harper government eliminated the Court Challenges Program of Canada back in 2006. This was done for ideological and not financial reasons. This was long before the global financial meltdown. The government then was still enjoying the healthy surplus it inherited from the previous Liberal government. There was no need, under the banner of austerity, to cut this program. This government just does not like to be challenged — not by Canadians, not by the opposition and certainly not with constitutional challenges in court.
The Court Challenges Program helped people whose constitutional rights were being violated but who could not afford to pay for lawyers to take their cases to court.
It helped families with children with disabilities. It helped people who were deaf, who wanted the right to sign language interpretation in hospitals, and it was pivotal in defending the rights of Canadians to use either official language.
Earlier I mentioned the op-ed last week by Madam Louise Arbour. In that article she also wrote about the importance of the Court Challenges Program. In her words:
This was an admirable companion to the Charter. It expressed the government's faith and commitment to rights enforcement, by equipping litigants and civil-society organizations with the ability to access the courts. This, in turn, provided the courts with high-quality Charter litigation without which the remarkable early Charter jurisprudence might have taken much longer to develop.
I am proud that so many Canadian governments, Liberal and Progressive Conservative, had such commitment to our Constitution that they willingly funded challenges to their own legislation. These were governments that did not fear dissenting views from Canadians. Their overriding concern was that all Canadian laws comply fully with the Constitution.
The current government now takes a very different approach. Not only has it done away with the Court Challenges Program and cut funding to many groups that challenged government action, it openly seeks to circumvent the clear intent and words of the Constitution in its determination to impose its vision of a new Senate on Canadians. It has steadfastly refused to refer the question of the constitutionality of its proposals to the Supreme Court. I can only conclude it is because the government believes that those proposals would be found to be unconstitutional.
Honourable senators, if a government is prepared to amend the Constitution by circumventing the amending formula, what is to prevent it from deciding next to circumvent fundamental rights and freedoms in the Charter? It is precisely to guard against such actions by a government — by any government — that we have a Constitution and a Charter in the first place.
I will end by returning to the beginning, to the words of Prime Minister Trudeau spoken 30 years ago on April 17, 1982, at the proclamation ceremony for the Charter. He expressed his deepest hope that Canada "will match its new legal maturity with that degree of political maturity which will allow us all to make a total commitment to the Canadian ideal." He said:
I speak of a Canada where men and women of aboriginal ancestry, of French and British heritage, of the diverse cultures of the world, demonstrate the will to share this land in peace, in justice, and with mutual respect. I speak of a Canada which is proud of, and strengthened by its essential bilingual destiny, a Canada whose people believe in sharing and in mutual support, and not in building regional barriers.
I speak of a country where every person is free to fulfill himself or herself to the utmost, unhindered by the arbitrary actions of governments. . . .
We now have a Charter which defines the kind of country in which we wish to live, and guarantees the basic rights and freedoms which each of us shall enjoy as a citizen of Canada.
It reinforces the protection offered to French-speaking Canadians outside Quebec, and to English-speaking Canadians in Quebec. It recognizes our multicultural character. It upholds the equality of women, and the rights of disabled persons.
I will conclude as Trudeau concluded:
For what we are celebrating today is not so much the completion of our task, but the renewal of our hope — not so much an ending, but a fresh beginning.
Let us celebrate the renewal and patriation of our Constitution; but let us put our faith, first and foremost, in the people of Canada who will breathe life into it.
Some Hon. Senators: Hear, hear.
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