It looks like this is going to be a heavy hitter.
Don’t hate us because our Constitution’s beautiful
Tuesday marks the 30th anniversary of patriation and the enactment of the Charter of Rights and Freedoms. Regrettably, our government has shunned any official celebration of these events. But not to worry. The Charter is likely to receive warm greetings from its many supporters around the globe. Americans are now even calling Canada “the new constitutional superpower”. Who knew? How did this happen?
With the Charter, Canada developed a distinctly “Canadian” model of constitutionalism that has been studied, emulated and adopted abroad. This is likely to come as a surprise to most Canadians because we have come to take the Charter for granted. It is simply part of our legal and political systems. And we tend to see the Charter in bits and pieces — looking at sections such as freedom of expression or the right to equality or court decisions. But the rest of the world sees, first and foremost, the whole structure of the Charter. And what they see is a unique constitutional work of art.
The Charter’s architecture consists of the broad enumeration of rights, which place the individual at the centre by guaranteeing rights to “everyone” or “every person,” subject to a single limitations clause of general application. The Charter keeps the legislature in the rights equation through the notwithstanding clause, which allows legislators’ determinations to prevail on an issue despite a particular provision of the Charter or the courts’ interpretation thereof. The Charter’s key constitutional innovations are the single general limitations clause and the notwithstanding clause.
The general limitations clause contained in section 1 of the Charter marked a decisive and innovative break from existing constitutional models. It provided a constitutional “third way” of limiting rights between the American model of stating rights in absolutist terms and European approaches of having rights-specific limitations.
While international human rights documents such as the Universal Declaration of Human Rights contained the model for a single limitations clause of general application, these documents remained primarily rhetorical. Their intent was to inspire rather than to provide an operational framework for the enforcement of rights. The Charter firmly put the theory of the single limitations clause into action, making a unique contribution to global constitutionalism. Other jurisdictions — including South Africa, New Zealand, Israel, the Australian Capital Territory and the Australian state of Victoria — followed the Charter’s path.
The second constitutional innovation produced by the Charter was the notwithstanding clause. Similar clauses existed in the Canadian Bill of Rights and several provincial human rights statutes, but they never really attracted much attention in the courts or in the political arena. The notwithstanding clause’s dramatic last-minute insertion into the Charter as a result of the “kitchen accord” in November 1981 catapulted it into constitutional discourse. Constitution makers in other countries liked the idea of giving legislatures an express override over court decisions. Thus, analogous provisions were adopted in Israel and the U.K., and the override idea was adapted in New Zealand and Australia.
Together the limitations and the notwithstanding clauses created in the Charter a uniquely Canadian model of constitutional rights protection. The Charter added a new alternative into the traditional debate between judicial supremacy, as idealized by the United States, and legislative supremacy, epitomized by the classic Westminster parliament. The Charter demonstrated the existence of a spectrum between these two poles and planted the Canadian model somewhere between them.
The Canadian model opened up the constitutional possibilities for rights protection rather than providing a definitive prototype that had to be adopted like a pre-fabricated structure. The Canadian model has become part of a growing constitutional buffet that constitution-makers can study and select from to suit their constitutional tastes. The question then becomes: What makes the Canadian model particularly appetizing to many jurisdictions?
Three key characteristics of the Charter explain its attraction to jurisdictions as diverse as Hong Kong, South Africa, Israel and New Zealand: the modern nature of the Charter, Canada’s credibility and the Charter’s accessibility.
On the Charter’s modern nature, I mean both the Charter’s age as well as its outlook. The Charter is a late 20th-century bill of rights in a time where the leading competing constitutional visions date back at least two centuries.
The American Bill of Rights is an 18th-century document that reflects its prevailing political philosophy — a classical liberal Lockean ethos of individualism. The French Declaration of the Rights of Man dates to the same period. Both documents have been and continue to be highly influential and inspirational as part of a very small and elite group of intellectual progenitors of 20th- and 21st-century rights discourse rather than providing concrete blueprints that speak to the challenges of the constitutional state in the 21st century.
In contrast, the Charter reflects Canada’s struggle with the challenges of a modern multicultural and multilingual society. Canada is not unique in facing such issues. The Charter recognizes the existence and the legitimacy of minorities and indigenous groups. While it is a product of our history, the Charter also reflects Canada’s vision as a participant in a global world. It draws strength from a universalist conception of human rights rather than any particular Canadian notion of rights, although it emphasizes rights that have special relevance to the Canadian condition such as language rights.
The American Bill of Rights has a number of problems as a model for other countries. First, the protections contained in the American Bill of Rights have been subject to over 200 years of judicial interpretation within a uniquely American political culture and history. To understand the right of free speech in the American Constitution you have to familiarize yourself with the Alien and Sedition Acts of 1798, the Red Scare of the 1920s and of McCarthyism, the Vietnam War era, etc. Americans are obsessed with their history and we Canadians tend to be oblivious to ours. This turns out to be a bonus for exporting our constitutionalism.
Second, American constitutional interpretation gives pride of place to “originalism” — what the founding fathers of the American Republic meant in the late 1700s. Frankly, few people care about this outside the United States, least of all those creating or interpreting their own constitutions.
The Charter represents a modern late 20th-century constitutional vision. The subsequent interpretation given to the Charter by the Supreme Court of Canada has served to reinforce rather than limit its international appeal.
The second general explanation for the Charter’s appeal is Canada’s credibility. The export of the Charter can be seen as an element of Canada’s foreign policy. It is part of Canada’s “soft power.” The Charter’s success abroad is very much tied to Canada’s participation in the international system and its global image. Canada is a member of more world organizations than any other country. We are the colleague of the countries of the world, not their competitor.
The Canadian constitutional model is non-threatening. When Peter MacKay was minister of Foreign Affairs, he explained, in the context of Canada’s contribution to democracy promotion, that Canada enjoys “unique credibility…. We were never a colonial power. We do not have great power ambitions. Our motives are not suspect, and our agenda is not hidden.” Or as Michael Ignatieff put it, “we don’t have the baggage of an imperial past or the menace of an imperial present.” Indeed, in today’s world, where American institutions and ideas are viewed with suspicion if not hostility, the Charter’s international credibility increases simply by virtue of its not being American. In short, it is not politically threatening for countries to look to the Charter as a constitutional model.
The final general explanation – the Charter’s accessibility to an international audience — is a simple but significant one. The Charter is accessible on at least three levels: linguistic, technological and interpersonal.
First, we should not discount the importance of the Charter being in English during an age in which that language has become the legal lingua franca of the world. The Charter, its case law and its commentary are available in a language that many foreign legal scholars, policy makers and judges can understand and use. In contrast, a constitution such as the German Basic Law, which is of significant interest to many comparative constitutional scholars, would likely have greater influence if its cases and commentary were more broadly accessible.
Second, the Internet increases the Charter’s accessibility by providing access to Canadian cases from anywhere in the wired or wireless world.
Finally, Canada has become a hospitable place for foreign scholars and interest in Canada has made Canadian scholars and jurists welcome around the world. The establishment of personal relationships and legal networks helps to spread the Canadian constitutional model.
Canada may not be the foremost constitutional superpower in today’s world, but we surely are a constitutional superpower with at least as much influence as the United States and probably more. The Charter is not the only model, but rather it has become a relevant and compelling one and any jurisdiction considering a bill of rights is likely to consider it.
So while in Ottawa there will probably only be a press release from the PMO to mark the Charter’s 30th birthday, it is likely that in other capitals around the world, citizens will be raising a glass of wine or a pint of beer to toast “the Charter!”
The Charter at 30: Don't hate us because our constitution's beautiful - National Post
