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Irwin Cotler

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Will Feds Stiff the Charter on its Birthday?

Posted: 04/12/2012 1:25 pm

On April 17th, Canada's Charter of Rights and Freedoms will celebrate its 30th birthday. This momentous occasion deserves commemoration and observance, as we mark one of the most important advances in the promotion and protection of human rights both domestically and abroad. Indeed, Canadians now enjoy a panoply of rights and remedies that were almost inconceivable prior to the Charter, and which has had a transformative impact not only on our laws, but on our lives, not only on how we litigate, but on how we live.

Regrettably, the 30th anniversary of any of the events in the landmark process to enshrining Charter rights has gone without any remark or notice from the government. Indeed, with just five days until the Charter's birthday we have yet to hear of any plans for official commemoration from the government. This, unsurprisingly, continues a disturbing trend of the government marginalizing the Charter, as it did most notably on its 25th anniversary. As a 2007 article in The Lawyer's Weekly noted, "Stephen Harper, a prominent Charter skeptic, and his justice minister, Rob Nicholson, were conspicuously absent from the commemorative festivities."

The Charter merits both recognition and respect from the government, reflective of the reverence it is accorded by both Parliament and the judiciary. Then Chief Justice Antonio Lamer spoke on the 10th anniversary of the Canadian Charter of Rights and Freedoms of it being a "revolution in law comparable to the discovery of Pasteur in science." Madame Justice Claire L'Heureux-Dubé, after just five years of the Charter being in effect said in 1987 that Canada had "stretched the cords of liberty" more in five years than -- in some instances -- the United States had done in 200 years. And even if one wants to say that some of that was enthusiastic rhetoric, it is clear that the Charter was indeed revolutionary.

Under the Charter, Canada moved from being a Parliamentary democracy to being a constitutional democracy. Courts moved from being the arbiters of legal federalism -- whether the matter is federal or provincial -- to being guardians of our constitutional rights, not because the Courts usurped Parliament's authority but because we, Parliament, on behalf of the Canadian people, gave them that power. Individuals moved from being the objects of rights to being subjects of rights, with the full panoply of fundamental rights and remedies that were unavailable in pre-Charter law.

Indeed, pre-Charter life and law is often a disturbing narrative of discrimination against, and marginalization of, vulnerable groups, including discrimination against aboriginal people, against racial and religious minorities, against women, against the disabled, against gays and lesbians, against immigrants and refugees, and the like. But, if you go about the country -- as I did while Minister of Justice -- and ask Canadians if their rights are better protected now than they were 30 years ago, the answer is invariably "Yes." This also finds expression in the public opinion polls themselves, where the Charter has emerged as an icon of the Canadian political culture.

Interestingly enough, the Charter earned respect and recognition beyond our borders. In an interview with Egyptian television earlier this year, US Supreme Court Justice Ruth Bader Ginsburg urged Egyptians in their nascent state of democratic reform to look beyond the US Constitution to the Constitutions of Canada and South Africa, whose constitution was informed by our very own Charter; while South African Courts have been influenced by our Charter, and have cited it more than the constitution of any other jurisdiction.

Simply put, the Charter of Rights and Freedoms is promotive and protective of what the pursuit of justice is all about. It is promotive and protective not only of the inherent dignity and worth of every human being, but the equal dignity and worth of all human beings -- where one can aspire to a society which celebrates both equality and human dignity -- a society which not only speaks to us in terms of who we are -- that recognizes the dignity of difference -- but also in terms of what we as Canadians, both collectively and individually, can aspire to be.

It would be only appropriate for the government to recognize the singular significance of the Charter by celebrating and commemorating its 30th anniversary, and recognize its place and importance in both the juridical and political history of Canada, and beyond.