The 25th anniversary of the adoption of the Charter, in mid-April, presented the rare opportunity for Prime Minister Stephen Harper and Justice Minister Rob Nicholson to join with many others in expressing their views of the Charter, its place in our constitutional order, and the effect it has had on Canada in its first quarter century.
Neither took advantage of invitations to the formal academic and professional events held to mark the occasion, where they might have presented an expansive account of their views. Their limited comments in the House of Commons in question period are therefore all we have. These statements, despite their brevity, reveal quite a lot.
Both Harper and Nicholson offered partisan responses to questions seeking a comment marking the occasion. Nicholson, for example, stressed that the Conservative party “has an enviable record with respect to human rights in our country” and needed no “lessons from anybody in this Parliament on the subject of human rights.”
He cited the Diefenbaker Bill of Rights and the extension of the franchise by Conservative governments to women and Aboriginal Canadians, indeed the full extension of the franchise, as elements of that “proud history.”
As to his own government’s accomplishments, he noted the federal victims’ ombudsman, stable funding for legal aid, and action on the Chinese head tax. He concluded by noting, “We did things that the Liberal party was never able to get done.”
Harper also took a partisan stance. He stressed the difference between his government, which actually promoted rights, and the Liberal record, which he described as catering to lawyers’ concerns and pocketbooks.
Like his minister of justice, the prime minister referred to the Diefenbaker Bill of Rights as the legislated beginning of Canadian human rights protection. He then cited a long list of his own government’s accomplishments and summed up in these words: “The government is acting on rights, unlike the record of that government which did not get the job done.”
His examples were noteworthy: protecting the rights of women and children from acts of criminality, extending the right to vote for the Senate, fixing the historic injustice of the Chinese head tax, the Air India inquiry, the residential schools agreement, and signing on to the United Nations declaration on the rights of the disabled.
These statements tell us a lot about the government’s official position on the Charter.
First and foremost, according to Harper and Nicholson, the Charter fulfils itself through legislation and government action, not through Charter litigation and judicial rulings. Many of the comments described were made in response to criticism of the government’s cancellation of the Court Challenges Program. In that context, the emphasis on this government’s aversion to lawyers’ concerns and lawyers’ work is significant.
Second, Harper and Nicholson consider the Charter’s subject matter to be “human rights” broadly conceived, rather than “constitutional rights” as embodied in its particular guarantees, principles, and institutional arrangements.
The examples given as proof of the Conservative government’s support and realization of “human rights” include many items that do not fall into that category. In fact, the list blurs into policies that are far removed from standard understandings of human rights.
Generally speaking, these exchanges prompted by the 25th anniversary of the Charter confirm what we already know. The Conservative government retains its continued allegiance to pre-Charter legislative supremacy. This is the reason why they praise the Bill of Rights, although it effected negligible change in public policy and no change in institutional function. Indeed, that is why they praise it.
They ignore the fact that the Charter was designed to repudiate all the features of the Bill of Rights that made it ineffective, including the fact that it did not stand supreme over statute, did not provide for judicial review, did not mandate strong remedies including invalidation of statute, and - in substantive terms - left women as second-class citizens.
Lorraine E. Weinrib is a professor at the Faculty of Law, University of Toronto.