Statement made on 16 May 2012 by Senator Joseph Day
Hon. Joseph A. Day:
Honourable senators, on the thirtieth anniversary of the Canadian Charter of Rights and Freedoms, I am delighted that Senator Cowan moved this inquiry; the Charter is the most important document reflecting the civil liberties of Canadians.
Honourable senators, human rights matter. Since 1945, almost 60 countries around the world have adopted new constitutions or revised existing constitutions to include a bill of rights. However, the practical application of civil rights varies from nation to nation. Some constitutions are shams and some are simply ignored. A striking example is the experience in the United States. During the first 150 years of the republic, the Bill of Rights of 1791 was largely ignored by the courts; but part way through the last century, the Bill of Rights became the focal point of judicial activism. Totalitarian regimes and many so-called "banana republics" have eloquent bills of rights, which in practice have no enlightened application whatsoever. Every jurisdiction has its own story.
Canadians are experiencing considerable judicial activism, but the level of access to enjoy the promise of the Charter is mixed. Bills of rights look great on paper. Costs may restrict the availability of judicial redress to the middle and upper class due to the costs of engaging legal counsel. Without financial means to pursue a human rights case in court, the promise of the Charter remains theoretical for those who are marginalized by income, often related to race or personal status.
The Trudeau government created the Court Challenges Program in 1978 to assist the disadvantaged to support and promote their rights. Due to increased Charter activity, the Mulroney government expanded the program in 1985. As Senator Cowan mentioned, Liberal and Progressive Conservative governments of 20 and 30 years ago did not fear dissenting views from Canadians. Sadly, the program was cancelled in 2006, except for challenges to language rights cases.
For marginalized citizens, the Charter's promise is elusive, incomplete and beyond reach, as long as we do not have a publicly funded court challenges program. We must revisit this issue in order to make our democracy whole. Only through strategic, often expensive litigation, will the promise of the Charter benefit all citizens. Otherwise, the Charter will slide into an exclusive made-for-the-upper-and-middle-class remedy by ignoring the practical need for universal access.
Honourable senators, marginalization speaks to the ongoing tug-of-war between economic and political considerations and civil rights. Constitutional frameworks seek to accommodate these elements, at least on paper. The achievement of democracy is only fully met when we balance these interests in practice.
Our social history, illustrating how we are supposed to treat each other, is a fascinating story; our constitutional benchmarks are well known. I mention only a few of them that particularly resonate from the last 997 years when the Magna Carta was signed by King John in 1215: the Habeas Corpus Act; the English Bill of Rights; the Quebec Act; the Constitutional Act; the Wartime Election Act, 1917; the Canadian Bill of Rights, 1960; and the Charter of Rights and Freedoms, 1982.
Adding to these milestones are international influences preceding our Charter's birth, including France's Declaration of the Rights of Man and of the Citizen, 1789; the United States Bill of Rights of 1791; the International Court of Justice of 1945; the Universal Declaration of Human Rights, 1948, in which a Canadian, John Peters Humphrey, played a major role; the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1953; and the UN Covenant on Economic, Social and Cultural Rights and its Covenant on Civil and Political Rights in 1976.
Our Charter is the product of a long journey on the road to embrace civil rights. It is really a combination of guideposts, inspiration and promotion for civil liberties for the 20th Century in Canada.
Individual freedom and the recognition of human dignity took on new meaning with the passage of each piece of legislation I have just mentioned, culminating in our Charter of 1982. Each milestone proclaiming our liberties paves the way for the next one, regardless of the time that passes between them. They simply build on each other, reflecting the development of the legal framework required for the ways we treat each other and the respect that we give to each other. One by one, these changes push the old frontiers of human rights into new and unknown territory.
We live in a continuum of ever-expanding human rights. The Charter unfolds as a living tree, extending its reach everywhere, impacting every aspect of our lives. This directly contrasts with previous notions that constitutions embrace frozen concepts.
When ruling on same-sex marriage in 2004, the Supreme Court of Canada depicted our Constitution as that living tree, which, by way of progressive interpretation, accommodates and addresses the realities of an evolving world.
A fascinating phenomenon of legislative action is the challenge and the magic of unintended consequences, honourable senators, flowing from that parliamentary action. Effects on human rights legislation are no exception. New legislation challenges old barriers. Once impenetrable frontiers are discarded, new horizons beckon, speaking to both the frailty and the nobility of human conduct. Consequences of legislation effecting human rights inevitably include resistance to the expansion and acceptance of alternatives. This is foreseen. At work is the living tree of the Constitution.
Charter-related decisions alter relationships in business and family in areas of artistic, academic and political expression, and in attitudes about law enforcement and the development of our sense of self-worth.
These changes take place in an officially bilingual setting, in a broadly expanding immigrant society that is also rooted in a rapidly evolving technologically based country. The dynamic changes demand our attention and our reflection, honourable senators.
By mentioning consequences, I do not speak negatively, although detractors may bemoan and belittle the desire to test new frontiers of civil rights.
The apex of the Charter's influence is our judiciary. Canadians frequently wait for clarity to determine whether or not Parliament is supportive of the Charter-based decision-making of the judiciary. Frequently parliamentarians and judges seem to be partners in human rights progress. Other times, one or the other takes the lead.
The Charter inspires the adjudication of profound human rights issues. At the same time, we see a dramatic increase in the number of women graduating from law school. I do not believe this to be an entirely coincidental situation. In the 1970s, when I was at law school, there were three women in my class of over 100. Today, women outnumber men in virtually all law schools. I think that I can make a reasonable assumption that there is some relationship between the Charter-based cases and the effect of the Charter on the practice of law. This is a consequence of evolving ideas, of the nature and intensity of freedom, attitudes about collective and autonomous action, and the discipline and responsibility we expect of each other in a democratic society.
Since 2008, almost 20 per cent of the Supreme Court of Canada appeals have been Charter cases, many of which speak directly to the ways we treat one another. These decisions have daily application in our lives. I could go over a litany of representative cases, honourable senators, but time does not permit. However, many have changed the way we view society.
In 1982, the Charter's adoption converged with rapid change in Canada. One hundred years ago, knowledge doubled every ten years. Knowledge now doubles in months, not years. This rapid increase brings dramatic change in technology, medicine and resource management. The rapid doubling of knowledge, combined with Charter-related jurisprudence, produces dramatic results. Effects on the legal community and Canadians are profound. Unintended consequences abound.
The legal community and its clients are becoming more and more impatient and frustrated by the diminishing pace of judicial processes — another unintended consequence. We are faced with new ways of approaching the limits of privacy and the multifaceted issues of abuses at school, at work, at home and in medical care facilities, to name but a few. The list is really endless. This is the new legal climate. It is the price we pay for enhanced and expanding civil liberties for Canadians, but doing the right thing should never be regarded as a burden on society.
The Charter is pivotal to the integrating and expanding of the very definition of our democracy. Discovering new horizons of constitutionally based civil liberties authored by the Charter is as wide as it is deep. The dimension of change is considerable and beyond preconceived ideas of human rights parameters.
We have heard many eloquent and impassioned speeches, honourable senators, on this inquiry. The Charter's significance for language and minority rights was reviewed by Senator Tardif. That seems to be an area of rights that is a kind of moving target here in Canada, which it should not be. We thought it was already settled, but it keeps getting challenged. The Charter anchors these rights. This is as it should be.
Senator Losier-Cool made specific reference to minority rights in our home province of New Brunswick. The Charter has provided legal strength to the linguistic and cultural rights of all Acadians. We must acknowledge here, honourable senators, the leadership role that Premier Richard Hatfield played at the time the charter was adopted.
Senator Smith spoke about the disabled. It is amazing that accessibility, which is only one of the issues facing those with physical disabilities, is yet to be a total reality. The Charter champions the rights of the disadvantaged.
Senator Cordy talked about expanding Canadian values, about the Charter as the inspirational document for new democracy on a planet plagued with foggy civil rights.
Senator Poy praised the new levels of understanding that the Charter brings to our unique multiculturalism that is so fundamental to our evolving identity as a nation.
Senator Hubley lauded the new frontier of women's rights in the world of sports, based on the Charter's equality clause, section 15, and the positive effect for women on the number of gender-discrimination challenges.
Senator Munson addressed many aspects of freedom of expression. No doubt the depths and limits of this issue will be one of the cutting edges of Charter-related judicial decisions for decades to come. Senator Charette-Poulin highlighted the Charter as the means for the Supreme Court to serve as the guardian of our rights.
Prime Minister Trudeau was the Charter's champion and architect, supported by three of the most resilient public policy quarterbacks in our modern history, Roy Romanow, Roy McMurtry and Jean Chrétien. What a fine team. Some might find fault with some of Mr. Trudeau's policies, but when it comes to the Charter, human rights advocates around the planet applaud his leadership. Together, Prime Minister Trudeau and his provincial premiers ushered in a new era of rights and freedoms, a beacon of civil liberty in the often tarnished world of human rights.
In launching this inquiry, Senator Cowan characterized the Charter as "truly transformative in our nation's history." He reminded us that the Charter has "become one of the most important symbols of Canadian identity." The Charter unifies our citizenship and codes and interprets and expands our shared rights. It inspires basic equality in our democracy. It promotes, and at times forces, legislative action to bring practical application to our legal rights.
Our Charter is the compass for Canadians and the cornerstone of our democracy. It acknowledges rights taken for granted by preceding generations. It embraces new rights. It is our legacy of dignity and humanity, now and for the future.
Thank you, honourable senators.