Canada's Charter Of Rights A Great Success

Jean T. Fournier - Canberra Times

The adoption of a Bill of Rights for any country is an important issue, and it has been Canada's experience that broad and sustained public discussion is essential...

Canada's Charter of Rights and Freedoms occupies a central place within the Canadian Constitution. Many of the basic values Canadians cherish are identified and protected in the charter, including our fundamental freedoms, democratic and legal rights, mobility rights and equality rights, the equal status of the official languages of Canada and minority-language education rights. The equality between men and women is also expressly guaranteed. Furthermore, the charter must be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

The charter does not pretend to provide an exhaustive list of all the rights and freedoms enjoyed by Canadians. Others, such as federal access to information rights, are to be found in statute law, while the rights of the Aboriginal peoples of Canada are recognised and affirmed elsewhere in the Constitution and in the federal Indian Act.

There was considerable public debate on the original version of the charter proposed by the Trudeau Government in 1980. Canadians had experience with a Bill of Rights adopted by the Federal Parliament in 1960: however, that only applied to areas of federal jurisdiction. Putting these rights into Canada's Constitution seemed a logical next step.

Much of the controversy at the time was associated with the patriation of the 1867 British North America Act, an Act of the British Parliament that founded Canada, and the search for an amending formula. A parliamentary committee held nationally televised hearings; more than 1200 submissions were considered and 104 witnesses were heard. Ninety hours of the committee's televised debates focused on the charter.

The prospect of a constitutional Bill of Rights, nurtured by an intensive federal awareness and advertising campaign, gained support across the country. While split on the issue, provincial premiers found it hard to object to the substance of the charter, since by then all the provinces had their own statutory human- rights acts. Strong political leadership and determination at the federal level as well as a willingness to amend its original proposals finally carried the day. At the time, one observer remarked that "the fact that Trudeau's project captured the imagination of Canadians proved the decisive factor in the Charter's ultimate adoption".

Supporters argued that the Charter's fundamental qualities of liberty, equality and fairness, especially as they applied to the very people for whom rights protection were most important (women, the disabled, the aged, linguistic, religious and cultural minorities, aboriginal peoples) were such basic rights that they should be set aside and given special protection within the Constitution, so they could not be taken away by any government.

Government powers are restrained in favour of the citizen who, as a consequence, is better protected in the exercise of his fundamental rights and freedoms.

The genius of Mr Trudeau was in sensing this desire among our people.

These would be guaranteed through judicial review, through the independent application by judges of legal analysis divorced from short-term political or partisan considerations and narrow cost-benefit analysis. This would effectively balance the will of the majority with the rights of individuals and the interest of minorities.

The Canadian critics of the charter, for their part, saw this role as unnecessary and anti-democratic, and argued that Parliament was the best protector of citizens' rights. A Bill of Rights would encourage frivolous claims. It would lead to a more litigious society. Allowing judges to strike down legislation inconsistent with an entrenched Bill of Rights also undermined parliamentary sovereignty and would frustrate the rule of the majority and government business.

The Canadian charter seeks to address these concerns. For example, Article 1 of the charter recognises that rights cannot be absolute and must be subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Article 33, for its part, recognises that the process of the legislatures and the courts must be balanced. The so-called "notwithstanding clause" allows a legislative assembly to state specifically that a particular law is exempt from certain provisions of the charter, following procedural conditions, thus acknowledging ultimate parliamentary sovereignty. This provision, however, has seldom been used by provincial legislatures and has never been used by the Federal Parliament.

Twenty years after its proclamation, public support for the charter is stronger than ever. It has now become a settled part of our national life. It is no longer seen as Prime Minister Trudeau's charter, although no-one else in Canada could have carried it off, and it was most certainly his finest hour. It has truly become the "people's charter", as Canadian and as popular as the flag we adopted in 1965. The charter has joined the Official Languages Act and the Canadian Multiculturalism Act as powerful tools of Canadian unity, reflecting a vision of who we are as a nation and what we want to become tomorrow.

While it is true that the effect of the charter continues to provoke debate in some quarters, it is equally true that Canadians have overwhelmingly embraced it and made use of it to expand the frontiers of equality and challenge age-old prejudices and practices.

Canada's current Prime Minister, Jean Chretien, was Minister for Justice at the time, and one of the charter's architects. Reflecting recently on the charter's adoption 20 years ago, he said, "We have a charter today because the people of Canada wanted one. They wanted our fundamental law to reflect and protect our fundamental values and identity: freedom; equality; the special place of the English and French languages and of aboriginal peoples in our national story; our modern multicultural reality; the principle of sharing prosperity and opportunity. Canadians were ready for a charter. They were ready to be bold. It is as simple as that. The genius of Mr Trudeau was in sensing this desire among our people and seizing the moment."

It has often been remarked that few countries in the world have as much in common as Australia and Canada. It does not follow, however, that Australia should adopt a Bill of Rights along the Canadian model or any other model. Australia has its own constitutional and parliamentary system, which in some important ways differs from Canada's constitution and reflects its own political genius.

Jean Fournier is Canadian High Commissioner and a former departmental Secretary who worked on implementation of Canada's Charter of Rights and Freedoms.