Opinions
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The Charter: A document on equality and dignity |
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Her Majesty Queen Elizabeth II with Prime Minister The Rt. Hon. Pierre Elliott Trudeau signing the Constitution. April 17, 1982, Ottawa, Ontario. In photo: Gerald Regan, Prime Minister Pierre Trudeau, Her Majesty the Queen, Michael Kirby, and Michael Pitfield(Source: Robert Cooper, National Archives of Canada/PA-141503) |
A historic document like no other
The Canadian Charter of Rights and Freedoms is a historic document on equality and dignity – the twin values of a just and decent society. Indeed, Canada can take just pride.
Sensing the dawn of a fully sovereign country, then-Prime Minister Pierre Elliott Trudeau, whose leadership helped us reached this goal, said, “We must now establish the basic principles, the basic values and beliefs which hold us together as Canadians so that beyond our regional loyalties, there is a way of life and a system of values, which make us proud of the country that has given us such freedom and such immeasurable joy.”
And that system of values is here to stay. An intrinsic part of Canada’s Constitution, the Charter has supremacy over any law of Parliament and is more difficult to change. Yet, it has already changed our country in many ways. Just turned 30 last April 17th, we trust it will help ensure Canada remains a just and dignified society.
The Charter and the Bill of Rights
Some have correctly pointed out that Canada has two bills of rights: the Canadian Bill of Rights of 1960 and the Canadian Charter of Rights and Freedoms of 1982. While both are laudable, the similarity ends there. The former was enacted by the Canadian Parliament and does not apply to provincial laws. As a federal statute, it can easily be changed.
In contrast, the Charter was passed by the British Parliament as part of the Canada Act of 1982 (the Constitution of Canada) at the specific request of the Parliament of Canada. That is why that moment, when Queen Elizabeth II signed the document and Canada’s Prime Minister Pierre Elliot Trudeau witnessed it, was historic for Canada. Thenceforth, “no Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.” As a corollary, Canada no longer needs to go to the British parliament to make any changes to her Constitution. Since it is a constitutional document and not merely a federal statute, the Charter has broader applications than the Canadian Bill of Rights and can only be changed following a stringent formula for its amendment, a process made even more stringent by a subsequently passed federal law.
A display of Canadian genius
Unlike the Canadian Bill of Rights, the definitive role of the courts in enforcing the Charter is one of its notable elements, but was a matter of great provincial concern during its evolution. To balance law-making and judicial review and thereby receive the needed provincial concurrence, then-Minister of Justice Jean Chretien succeeded in obtaining the agreement of then-Prime Minister Trudeau to the inclusion in the Charter of the “notwithstanding clause.” When invoked, the clause gives governments the authority to override certain “guaranteed” rights and freedoms. Those initially opposed to the clause felt it could defeat the essence of the Charter. Time has shown this clause has produced the desired judicial-parliamentary restraint and balance – a display once more of Canadian genius.
Scope of Charter guarantees
In commemorating last month that historic date,CBC News highlighted half a dozen major changes that have since occurred in Canadian society: (1) clarity on women’s reproductive rights, (2) rights to sexual orientation, (3) rights of access for francophones outside Quebec to French schools, school boards and even hospitals where numbers warrant, (4) safeguards and accountability for policing, (5) specific recognition of Aboriginal Peoples and their aboriginal rights, and (6) a significant role for the courts to interpret theCharter’s provisions and to provide creative remedies.
Relevance to immigrants
While the whole Charter serves as a protective and restraining shield of all Canadians with respect to their guaranteed civil and political rights against arbitrary laws, regulations, policies and actions by governments at all levels, including public school boards, I make additional highlights on three specific areas – mobility rights, equality rights and multicultural heritage – which I believe are of special relevance to our immigrant population and multicultural society and underscore the twin principles of equality and dignity:
Section 6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province and (b) to pursue the gaining of a livelihood in any province.
Section 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion,sex, age or mental or physical disability.”
(2) 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.” This speaks about affirmative action programs.
Section 27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
Multiculturalism a constitutional value
The Supreme Court of Canada, particularly under the leadership of former Chief Justice Brian Dickson, had earlier found that respect for cultural and group identity is part of the values essential to our democratic and multicultural society. Consequently, it ruled that prohibition against the promotion of hatred was a reasonable limit on freedom of speech. Such judicial interpretation helps advance the cause of vulnerable Canadians – individuals and groups – and strengthen their sense of community belonging. Subsequent judicial decisions have shown further support for the notion that “judges may take into account social and cultural contexts to properly accommodate multiculturalism.” This augurs well for Section 27. Inclusion of this section is a clear expression that multiculturalism is a constitutional value when interpreting the Charter.
That said, it is acknowledged that a number of legal scholars have also alluded to “a possible paradox between, on the one hand, fostering social cohesion, integrating immigrants into Canadian society, combating discrimination, and the like (all of which have the principle of equality as their basis) and, on the other hand, policies to promote diversity for the distinctive cultures within Canada, including the provision of public assistance to maintain this diversity, which of itself is a move away from formal equality.” While the interaction between these two values have not been fully answered by the Supreme Court, I share the optimism of those who believe the equality principle embodied in Section 15 “could embrace cultural diversity as a co-equal aspect of human dignity” and thereby grant full constitutional value to multiculturalism as embodied in Section 27.
Concluding words
Let me end where the Canadian Charter of Rights and Freedoms begins - in its preamble: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.” Indeed, the Charter and its preamble define who we are as a people – law-abiding, decent and imbued with a deep sense of others. And say a lot about our country – the second home for many of us who came, saw and chose Canada to be our permanent domicile.
The Honourable Dr. Rey D. Pagtakhan, a retired lung specialist and University of Manitoba Professor of Pediatrics and Child Health and former Member of Parliament and senior cabinet minister, is widely published and has lectured in Medicine and Politics. He has been the recipient of several honours and awards, including the honorary Doctor of Science and Doctor of Laws, and is listed in the Canadian Who’s Who.