Commentary
 

Transforming Society From: TheStar.com - opinion The Charter was partly the product of a ferocious desire by citizens who wanted to see their identity and rights included in a new, vibrant vision of Canada April 16, 2007 ERROL MENDES http://www.thestar.com/printArticle/203427 There are moments in the history of a people and a country that profoundly affect the evolution of that society in a way that changes them forever. There was such a transformation in Canada on April 17, 1982, when the Queen signed the Canadian Charter of Rights and Freedoms. The Charter was a product of the aspirations of Pierre Trudeau and his followers to unify their country under a document that they hoped would produce a common citizenship, which would unite French and English and all the communities that constituted the emergence of a multicultural and global society. Trudeau also hoped the Charter would bring Canada into the mainstream of the international human rights movement triggered by the horrors of World War II. The Charter was also the product of a ferocious desire of those citizens who wanted to see their identity and rights not left out of this new, vibrant vision of Canada. Thus women's groups, disability rights groups, ethnocultural groups, linguistic minorities, religious communities and other equality seeking groups fought and succeeded in having their identity and rights recognized in the Charter. The Charter was also the product of a globally unique form of Canadian accommodation between majority rule in a parliamentary democracy and the fundamental values and rights of Canadians. This was accomplished first by stating in the very first article that rights can be subject to reasonable limits that can demonstrably be justified in a free and democratic society. Second, the "notwithstanding clause" of the Charter allows legislatures to override rights in extreme situations and there has, rightly, been great political restraint in the use of this safety valve. Charter review can lead to the striking down or judicial refashioning of the law to bring it into line with the rights in the Charter. For Canadians who were accustomed only to judicial policing of the division of powers between levels of government, this change in 1982 was at the core of the transformation of the country and its people. A quarter-century on, the aspirations of Trudeau and the Canadian people in the Charter have seen their ups and downs, but there is evidence that it has transformed the country. The Charter, in several public opinion polls over the years, is viewed as the most important constitutional document of the country, even in Quebec, eclipsing, ironically, the venerable Constitution Act of 1867 that brought the country into being. While Canadians may not know the details of the Charter, they intuit that it is the bulwark of their fundamental values of democracy, equality, freedom and human dignity. From the birth of the Charter, the courts, especially the Supreme Court, has been guided by the values of proportionality and contextual justice in interpreting both the substantial sections of the Charter and leaving legislatures room to enact reasonable limits on rights in the collective interests of society. The first post-Charter Supreme Court, under the leadership of Chief Justice Brian Dickson, faced its new role boldly. It rejected the timid interpretations of the equality rights guarantee by former Supreme Court decisions under the Canadian Bill of Rights and entrenched a substantive interpretation of equality. It upheld the hate propaganda law to ensure the equal citizenship of minorities in our multicultural society. The court also extended the protection of the Charter to refugee claimants and struck down the law on abortion. It upheld the fundamental freedoms of religion and expression while also ruling that the collective linguistic rights of Quebecers under Bill 101 could not totally eliminate individual rights. Outside the strict limits of the Charter, the court also recognized and strengthened certain aboriginal rights. Subsequent decisions of the Supreme Court were critiqued as improper judicial activism by those who did not like a particular decision. These attacks usually arise from those who do not favour progressive interpretations of the Charter, such as the inclusion of sexual orientation in the equality guarantee, or the upholding of the rights of the accused in the criminal justice process. These critiques may have tempered the original Charter enthusiasm of the courts. Some have argued that the initial strengthening of the equality provisions was watered down by later decisions and, more recently, the court has been reluctant to render decisions in favour of rights that would cost huge draws on the public purse. Examples have included refusing to grant a right to welfare, or expensive treatment for autistic children, and allowing the Newfoundland government to withhold millions in pay equity owed to female employees. There seems to be a growing acceptance by the courts that it is not its role to second-guess legislatures on economic and social policy. Recently a slim majority of the court seemed to have ruled otherwise by striking down a Quebec law that prohibited access to private medical insurance for publicly available health care. This ruling may well usher in a two-tier health system in Canada. Most recently, the Supreme Court has ruled that security concerns cannot completely deny the right of fair hearing to those held under security certificates. The recent decisions on contested economic and social policies, together with the balancing of security concerns and fundamental rights concerns, indicate the trends in the next 25 years. If the purpose of the Charter was to cement a common citizenship in an often ruthless global economy and society, those aspirations have been and will continue to be severely tested. There will be Charter-based demands that governments do more to protect the most vulnerable in areas such as mental health, the elderly and the homeless. In addition, the mutating face of terrorism, organized crime and other societal threats will bring rights in conflict with the search for protection in an increasingly dangerous world. In the face of such challenges, those who fought to have the Charter become part of the fabric of Canadian society must fight to ensure the original vision does not weaken because it speaks to the nobility of the Canadian spirit and of all Canadians. Errol Mendes is a professor of constitutional and human rights law at the University of Ottawa.