Tutorial 101 on Canadian Charter of Rights and Freedoms

Editorial, Globe and Mail, February 10, 2012

Canada’s Charter of Rights and Freedoms, once thought to be tilting this country in the direction of the United States, is viewed as distinctive and a model for other nations, especially in the English-speaking Commonwealth.

That finding, in a U.S. study to be published this June, is a tribute to the intricate balancing act that is the 1982 Charter of Rights and Freedoms. As Canada was founded on compromise and dialogue, so are those qualities woven into its rights charter. And so it offers a structure for working through the competing interests found in any sophisticated, multicultural nation – as in the case of a Muslim woman who wished to wear her face veil while testifying in a sexual-assault case. (The case is before the Supreme Court of Canada.) That kind of discussion has proved to be illuminating for courts in other lands.
The structure for balancing opposed interests is found in three key sections. Section 1 sets out that rights are not absolute; governments may limit them, as long as they have evidence to justify those limits. (The Canadian Charter was the world’s first rights-protecting agreement with a broad limitations clause.)
Section 15, the equality-rights section, is open-ended, and new groups, such as gays and lesbians, have been brought under its umbrella by the Supreme Court. (Hence, gay marriage.)
Section 33, the override or “notwithstanding clause,” says that when a court strikes down legislation, a government may go ahead anyway – though it has to renew that decision every five years. That has made for a delicate balancing act between judges and legislators. Judges need to spend their political capital wisely.
It’s worth remembering the fears, not entirely unfounded, that judges would in effect sweep legislators aside and run the country. The Canadian model that seeks a balance or dialogue between judges and legislators has become the norm in many democracies, according to Sujit Choudhry, a Canadian who is the Cecelia Goetz Professor of Law at the NYU School of Law. Judges in Britain, where the European Convention on Human Rights has been imported into domestic law, cannot strike down laws, but they can review them and pronounce them incompatible with the convention – obliging legislators to reply.
“Is Canada a constitutional superpower?” U.S. law professors David Law and Mila Versteeg ask, in an article to be published this June in the New York University Law Review. They imply the answer is . . . no. Still, “on average, the world’s democracies are constitutionally more similar to Canada than to the United States.” And “given Canada’s relatively high prestige and goodwill as a member of the international community,” they conclude that Canada is “a constitutional trend-setter among common-law countries.”
Canada is no military superpower, though it fights hard. It may yet become an energy superpower, whatever that is. But in projecting its values through the plain-language Charter of Rights and Freedoms, it is proving surprisingly influential: a moral leader.
While we celebrate the accomplishment of the Charter of Rights and Freedoms,  we do not hold that it makes Canada a moral leader. It is precisely that kind of thinking that has embedded itself in the head of the current Prime Minister, whose capacity to trumpet his government and its (backward) moves is limitless.
While protecting individual rights against their intrusion or even abuse, the Charter seems to omit a section on individual citizen responsibility. Asking citizens to participate more fully in the issues of the day, locally, provincially and nationally is not something governments can or should be able to legislate. However, drawing a picture of responsibility, and teaching students how and why they might aspire to incarnate such a three-dimensional picture of citizenship, is certainly within the parameters of a national government.
Expectations of playing a responsible and accountable and even leadership role in the communities in which we live is not outside the capacity of leadership of the national government.
However, serving (usually under duress) on a jury ought not to be the only requirement of a citizen, and then being able to find excuses galore to self-exempt from such service tend to make a mockery of the importance of the need for "peer evaluation" of a person's culpability. Expecting individuals to serve their country in a two-year "gap period" for example, either at home or around the world, would go a long way to opening the eyes of Canadians about both the advantages we enjoy, and often take for granted, and about the desperation that co-exists with our plenty every day in every corner of the world. Expecting students to remain in school until 18, for example, would also go part way to solving the lost capacity of the human resource, which, after all, is any country's most important and most capable of development and it should be taken much more seriously by our government leaders. Expecting Canadians to reach national goals, by setting out some of those as examples, would also do much to paint a picture of where it might be possible for the next generation to fill in the gaps both in their training and apprenticeship and in their forging of relationships consistent with their ambition to meet those goals.
This nation loves looking backward, into its history. And on one level that is a good thing. However, using that history as a map for conceptualizing the future, in an orderly and even visionary manner would do much to raise the expectations of each new generation of young Canadians and would do much to raise their confidence in their own roles and in the congruency of those roles with the national identity and its development.
We need, for example, chairs in our universities that do not fold neatly into one or two academic subject compartments but examine the evidence across the broad range of the curriculum, and posit some benchmarks for the future. A country that sees only yesterday and today is not going to be prepared for an even more uncertain tomorrow.