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The Charter of Rights at 25 –
What the UK can learn from the Canadian Experience

Dr. David Johnson
Associate Professor
Department of Political Science
Cape Breton University
Sydney, Nova Scotia, Canada

Presented to the Labour International – Costa Blanca Speakers’ Series
Javea-Xabia, Valencia, Spain
March 11, 2008

In 1998 the Human Rights Act introduced the European Convention on Human Rights into British law, with this act coming into force in 2000. The UK has now had eight years of experience living with the Human Rights Act and, as you all well know, there is a great debate in Britain respecting the advantages and disadvantages of this institutionalization of rights protection within the British legal and political system. Recent reports from the BBC indicate that Britons are divided on the merits of the Act. While surveys indicate that a majority of Britons support such a law promoting human rights and greater social equality these same surveys also indicate that a majority of Britons also believe that the Human Rights Act is being abused, with the Act being used by too many immigrants, asylum seekers, criminals, their lawyers, and celebrities. In one BBC survey 40% of respondents said that the Human Rights Act created more problems than it solved. While Labour governments have long defended the Act, the Conservative party has called for the Act to be scrapped in favour of a new British Bill of Rights.

Coming from Canada, this debate in Britain sounds eerily familiar. Canada established a Charter of Rights in our constitution in 1982 so we have now lived for a quarter century under this new rights regime. And we have experienced the same types of debates and controversies, impassioned pleas for rights advancement and vitriolic attacks on misplaced idealism. And now, we in Canada stand in a unique position to our old “Mother Country”. Whereas in the past, we in Canada, as the younger country, tended to learn from the political and constitutional experience of Britain, now, with our greater experience of living with a Charter of Rights, there might be lessons from the Canadian experience that might help inform debate in the UK regarding your Human Rights Act.

The comparison here is apt and inevitable, notwithstanding certain constitutional differences between the two countries. Both countries are constitutional democracies founded upon the British parliamentary tradition. Both countries possess similar legal structures and practices founded upon the English Common Law tradition. And both countries have liberal democratic political systems marked by political pluralism, majority rule, respect for minorities, the Rule of Law, competitive multi-party elections, multi-culturalism, social egalitarianism, civil society marked by free interest groups, free expression, and a free media, market economies subject to varying degrees of state regulation, and with the state possessing significant roles in the development and administration of social-welfare policies. The key constitutional differences between the two countries, of course, are the most obvious ones, but even these differences are becoming of lessened significance with the passage of time. Britain has long been a unitary state, only in the past few decades moving to establish various degrees of legislative devolution to Scotland, Wales and Northern Ireland. And the UK, unique in most of the world, possesses a largely “unwritten” constitution, one that is not codified in a single, formal constitutional document. In contrast, Canada, since 1867, has existed as a federal state with a formal, written constitution, the old BNA Act of 1867, renamed the Constitution Act in 1982.

In 1982, as a part of major constitutional reforms enacted in that year, Canada established a constitutionally entrenched Charter of Rights and Freedoms legally binding upon all governments in the country. Prior to 1982, Canada had had no such constitutionally entrenched Charter of Rights. From the founding of British colonies in British North America through Confederation in 1867 and through to 1960 we had very much followed the British experience of leaving rights and freedoms to the protection and management of Parliament. In 1960 the Conservative federal government of John Diefenbaker established a Canadian Bill of Rights, providing for basic legal and political rights, but this Bill of Rights was not constitutionally entrenched, it was not binding on the provinces, it could be amended or abolished by any future federal government, and, as such, it was never given great weight by the Canadian courts.

By the early 1970s, however, there was a growing movement in Canada, largely centred on the Liberal-Left, pushing for a constitutionally entrenched Charter of Rights that would be binding on all governments.

Those in support of such a reform were largely found in the Liberal Party, the NDP, and various progressive social movements such as the women’s movement, organized labour, and minority groups, and they argued the following basic points:

• That a Charter of Rights would promote and protect the fundamental rights and freedoms of all Canadians.
• That such a Charter would restrict and guard against future governments being able to violate the rights and freedoms of Canadians.
• That such a Charter would protect minorities from discrimination at the hands of insensitive or even hostile majorities.
• That such a Charter would help promote social equality in Canada.
• And, that such a Charter would enhance rights’ consciousness in Canada, making people more aware of rights and freedoms, of social equality, and the need to fight discrimination, arbitrary state power, and injustice.

Those opposed to the constitutional entrenchment of a Charter of Rights over the 1970s and early 1980s were largely provincial governments, of all political stripes from the right to the left, Tory elements of the federal and provincial Conservative parties, and certain academics suspicious of the Americanization of the Canadian constitution.

The basic arguments against establishing a Charter were the following:

• That a Charter was not needed. If it ain’t broke, don’t fix it.
• That Parliament could and would protect the rights of Canadians, and that over some 150 years of parliamentary democracy in Canada dating from 1848, Canada had evolved into a fine liberal democracy with a reputation as a tolerant, peaceable, and progressive society.
• That a Charter would Americanize Canadian society in that it would legalize politics and politicize the judiciary
• In particular, the claim was made that under a Charter of Rights, as with the Bill of Rights in the US, the Canadian courts would be given an enhanced policy-making role in Canadian society, with the courts, and not Parliament, becoming the key bodies deciding what would be appropriate public policies in the country.
• And, as this happened, we would witness a transfer of political power from the hands of elected parliamentarians officially accountable to the people through democratic elections to the hands of unelected judges, appointed by given PMs, and officially accountable only to their own consciences.

Now, the Charter of Rights and Freedoms was passed into law in 1982, as part of a broader set of constitutional negotiations witnessing the patriation of the Canadian constitution from the UK, the establishment of a domestic amending formula in the Constitution Act of 1982, and the enhanced recognition of provincial ownership of natural resources. (tons of history and politics here but I will pass on to the details of the Charter).

You have copies of the Charter. I will highlight key provisions and then come back to SS. 1 and 33. The Charter is designed to protect and promote: S. 2 Fundamental Freedoms;
S. 3 Democratic Rights; S. 6 Mobility Rights; S. 7 Legal Rights; S15. Equality Rights; S. 16 Language Rights; and S. 23 Minority Language Educational Rights. As suxch, the Canadian Charter is more expansive than the British Human Rights Act, covering more fields of social activity and interests.

But these rights and freedoms are subject to two overriding restrictions.

Under S.1 all the rights and freedoms found in the Charter are subject to reasonable limits, prescribed by law, as demonstrably justified in a free and democratic society. So, governments can seek to justify their legislation as constituting a reasonable limit on Charter rights and freedoms and it is the courts that will decide whether such a justification is reasonable and viable. If so, government action that stands contrary to the rights and freedoms of the Charter can still be upheld by the courts as a reasonable limit to these rights and freedoms.

And, under S. 33, the Notwithstanding Clause, the federal Parliament, or provincial legislatures, may declare that legislation can operate notwithstanding a provision of the Charter found in SS. 2 and 7-15, that is, the fundamental freedoms provisions, and those provisions dealing with legal and equality rights. S.33 is designed to ensure that parliamentary and legislative supremacy is ultimately maintained for all policy fields dealing with fundamental freedoms, legal rights and equality rights, providing that federal or provincial governments are willing to take the political heat of declaring that given pieces of legislation will operate notwithstanding the application of the Charter.

Since 1982 the Charter has come to dominate Canadian legal decision-making and has become the single most significant type of law in Canada. And Charter litigation has come to dominate the work of the Supreme Court of Canada, the highest court of the land.

The types of cases, the types of Charter challenges coming before the courts over the past 25 years have been extraordinary – some expected, many unexpected, and with some surprising and influential results, not to everyone’s liking. Here are just some highlights out of thousands of cases:

• Does the Freedom of Religion in S. 2 give Sikhs the right to wear turbans, contrary to RCMP dress codes, and carry kirpans, contrary to school policies prohibiting weapons in schools? In both cases the SCC answered yes, stressing that Charter rights needed to be inclusive, that the restrictions here were not reasonable, and that these minority interests could be easily accommodated.

• Does Freedom of Expression in S. 2 extend to corporate advertising, meaning that federal legislation restricting tobacco advertising is unconstitutional? Here, the SCC partially ruled in favour of major tobacco companies, stressing that freedom of expression included commercial expression and that a complete ban on tobacco advertising would be unconstitutional.

• Does Freedom of Association in S. 2 give unions a constitutional right to organize, to engage in collective bargaining, and to strike if necessary? Here, in a number of cases the SCC ruled that the freedom of association does gives unions the right to organize and to engage in collective bargaining but that governments, by virtue of S.1, have the right to suspend collective bargaining and to prohibit strikes in exceptional circumstances.

• Does Freedom of Expression in S. 2 mean that the Government of Quebec’s French-only language laws prohibiting the use of English in commercial advertising constituted a violation of the rights of English Canadians living in Quebec? In 1989, the SCC agreed with the English-speaking claimants and held that while the French language would have to be dominant on commercial signage, English could also appear on such advertising. The Government of Quebec refused to obey this SCC decision and used S. 33 to say that, notwithstanding the order of the Court, Quebec’s language law would be maintained for the collective interest of the French language. This decision by the government of Quebec was reviled in English Canada but was immensely popular in Quebec.

• Under S. 7. do the rights to liberty and security of the person give a woman the constitutional right to an abortion? Conversely, does the right to life extend to a fetus? In what were likely the SCC’s most controversial decisions, in 1988 and 1989 the court held that then existing Criminal Code provisions restricting access to therapeutic abortions were unconstitutional as a violation of a woman’s security of the person. The court struck down the old law, but established no new provisions in its place, stressing that this was the role of Parliament. To date, the federal government has not brought forth new legislation governing abortion policy, meaning that there are no legal restrictions on the practice of abortion in Canada. Women are free to obtain abortions and physicians and hospitals are free to provide the service but they are under no state obligation to actually offer abortion services. So, actual access to abortion services vary across the country. In 1989, the court also ruled that all rights and freedoms found in the Charter extend only to living persons and that, under Canadian law, legal personhood begins only at the point of live birth.

• Also, under S. 7, does the guarantee of the right to security of the person extend to refugee claimants seeking sanctuary in the country and protesting their deportation orders? In this case, do Charter rights extend to non-citizens subject to Canadian law. To these questions, the SCC ruled yes. S. 7 rights extend to non-citizens subject to Canadian law and refugees do have a right to a full legal hearing to determine if they have a right to sanctuary in Canada. This ruling, in 1985, has made the Canadian refugee system one of the most liberal in the world.

• Under S. 9, does the right not to be arbitrarily detained render invalid police roadside spotchecks aimed at checking whether drivers are impaired? The SCC has upheld such programs stressing that while they do constitute arbitrary detention under the law, the program is saved under S. 1 as being a reasonable limit prescribed by law.

• Under S. 11, does the right to be tried within a reasonable time mean that a two and a half year delay in a major criminal case, with the delay wholly attributable to the Crown, renders the continued prosecution of this case unconstitutional? Here, the SCC agreed with the defence, threw out the case, and set tough new guidelines on acceptable and unacceptable court delay.

• Finally, under S. 15, does the guarantee of equality mean that federal marriage legislation restricting marriage to opposite sex couples only constitutes unconstitutional discrimination against gays and lesbians. In 2004 the SCC agreed, striking down the federal legislation and stipulating that marriage rights should be extended equally to heterosexual and homosexual couples.

This just gives a taste of the breadth and depth of Charter cases coming before the Canadian courts. But what are some of the broad trends that might be of interest to those in the UK as you come to terms with, and seek to understand the dynamics of living with the Human Rights Act?

Contrary to Charter advocates prior to 1982, the “social groups” that have made most use of the Charter since its inception have not been progressive, right’s seeking, equality groups, but rather, the criminally accused protesting actions of the police and Crown attorneys, convicted inmates protesting the actions of prison authorities, and business groups protesting state regulation of business. Litigation by New Left groups has been limited, both in terms of actual cases launched, and success in those cases. Appreciate a very practical dynamic here. The cost of launching a Charter case and seeing it through from the lower courts, through two stages of appeal, and then on the SCC, costs, at a minimum, roughly $1 million, and often more. And with no guarantee of success at the end. But, one has to be careful; jurisprudential importance is not contingent on numbers. One case can be precedent setting for decades to come.

So, who have been the winners and losers in Charter jurisprudence?

Most Canadian Charter analysts will stress that winners have been:

• Business, in ensuring that corporations are entitled to Charter rights and freedoms, that commercial expression is constitutionally guaranteed, that the right to strike is not constitutionally guaranteed, and that security of the person may justify the establishment of a two-tiered health care system, providing super-added benefits for those willing to pay for them.

• The criminally-accused and their defence attorneys who have made SS. 7-14 a growth area in Canadian criminal law, and who have been very successful in enforcing stricter controls over police behaviour and the practice of due process before the courts.

• Visible minority groups, successful in having the courts recognize that policies of affirmative action and employment equity are acceptable under the Charter.

• Homosexual groups, successful in having S. 15 equality rights extended to them such that discriminatory treatment in pension benefits, death benefits, and entitlements to marriage, have been extended to them, over much public backlash.

• Womens’ groups, in part, for the gain in having historic restrictions on abortion ruled unconstitutional, as well as other laws that had imposed discriminatory treatment on women seeking certain types of employment, such as women seeking employment as police officers and firefighters and being subject to male-based strength tests.

Losers have been:

• Organized labour, for failing to have the right to strike constitutionally recognized, and for having restrictions on collective bargaining sanctioned by the courts.

• Linguistic minorities, in Quebec. The English minority in Quebec, has witnessed the government of Quebec use the Notwithstanding Clause on them to ensure that French-only commercial signs remain in place regardless of a SCC decision to the contrary.

• Women’s groups, in part, for losing certain cases dealing with trial rights, especially in regard to sexual assault cases where the past sexual history of female victims can be used by the defence to attack the credibility of victim testimony. And, with respect to abortion, while the 1988 case rendered abortion legal in Canada it did not mandate that the state, and state-run hospitals, possessed a legal obligation to provide these services when requested by female patients.

• Those seeking to promote collective rights in the Canadian constitution. The Charter is essentially a Charter of individual rights and freedoms, with little concern for broader group rights. Hence the concern over recent SCC decisions threatening the continued viability of the public system of health care.

• Those who have been suspected of terrorism related activities since 9/11, especially young men in Canada of Arab descent. The Charter has been of little protection for these people, with the SCC ruling that new Anti-Terror policies passed in the fall of 2001 and allowing for indefinite detention of terror suspects, the suspension of Habeas Corpus, and the conduct of trials were the defence is given limited access to the case against the accused, have been deemed acceptable by the courts as reasonable limits to the Charter under S. 1.

So, what are the lessons here for the UK?

The Charter has been important in Canada and has had a great impact on the development of law and policy in Canada.

But, on balance, it has neither been as good as its defenders said it would be, prior to 1982, nor as bad as its detractors would have had us believe. It has benefited some rights-seeking social groups, such as gays and lesbians, visible minorities, and women’s groups, but it has also benefited the criminally accused and large businesses.

It has imposed restrictions and controls on how governments interact with individuals, especially in relation to police work, the laying and prosecution of criminal charges, penal custody, and the regulation of business and social policy. But, governments have been quite successful in sustaining core policies and programs through the use of S. 1.

S. 33 has been used rarely, once against organized labour, and once against the English minority in Quebec.

The Charter has had the impact of judicializing politics and politicizing the judiciary in that now, in Canada, it is hard to find a field of policy, especially domestic socio-economic policy that does not have some connection to the Charter, where state action can either be either supported or attacked through Charter litigation. As such, the courts have become important stages in the development and administration of policy, meaning that policy debate in Canada has become more legalized. This is a fact of life with a constitutionally entrenched Charter. And this does mean that there is much greater interest now, in Canada, in who sits on the Supreme Court, and the lesser courts, what their legal, political and social background is, and what their jurisprudential approaches have been to such matters as the role of the state in policy development, judicial deference versus judicial activism, and their willingness to defer to state action. As such, the politics of judicial appointment making has become of growing importance in Canada, with this historically staid and quiet process becoming more open, publicized, and controversial.

Yet, this does not mean that politics has been drained out of the debate on socio-economic policy. Far from it. Parliament and legislatures still play a major role in promoting new policies, defending old ones, and acting as a sounding board for public debate on major issues. Under the Charter the courts now have a major role to play in this policy debate and elaboration but they have nor usurped the role of Parliament. And, as we have seen, Parliament and legislatures have powerful weapons under SS. 1 and 33, for promoting their policy interests, not to mention the power of PMs in appointing judges in the first place.

So, we have a more complicated policy-making and law-making system than we had prior to 1982. Is it better? That very much depends on one’s viewpoint, what one makes of some of the major cases that have been decided by the courts, and one’s willingness to trust the courts and the judiciary with a major accretion of power and role in society.

I tend to think we are better off, on balance, that rights are given more protection through the courts, and that rights consciousness is more prevalent in Canadian political culture. But the advance here is relative, restrained, and complex. Some social interests have been advanced, others not. And state power to act, for good or ill, remains strong. While Canada is better off, I still believe that the courts and Parliament could have been much more progressive at times. Perhaps this shows an institutional conservatism in both the courts and Parliament that is reflective of a society that has a strong conservative streak. The key lesson here, I surmise, is that far from fundamentally changing a society, a Charter simply reflects certain core values deemed to be important to that society, with the law and the courts acting as a mirror unto that society.

And you people know British society much better than I, so I can ask you, what type of Britain is reflected in your Human Rights Act? And what type of Britain is reflected through the work of the British courts? The experience in Canada, the U.S., and Europe, is that any entrenched Bill or Charter of Rights will legalize politics and politicize the judiciary. Is Britain ready for this? And is British public opinion ready to understand the complexities of legal and political life in this new era?