It was raining that day on Parliament Hill when I and countless other proud Canadians stood in the rain to witness Prime Minister Pierre Trudeau and Queen Elizabeth II sign the Constitution thirty years ago. Canada had at long last broken free of its colonial status.
Thrown into the bargain was a controversial Charter of Rights and Freedoms. Although one of Trudeau's few real achievements, the Charter has, nonetheless, been a disappointment. Intended to enshrine individual rights in the constitution, the charter has in many ways come up short.
First, the existence of that pesky notwithstanding clause means that governments can always override the Charter if they see fit. While the argument for parliament supremacy is compelling, it is little consolation for non-francophones living in Quebec where the provincial government has repeatedly used the notwithstanding clause to circumscribe minority linguistic rights. We should not be surprised that majorities sometimes act like majorities. That's why we have a Charter. Too bad that when it really counts, the rights of minorities can still be sacrificed.
Second, the Charter has proven to be quite a malleable instrument in the hands of activist lawyers and judges, and has been used in ways that parliament never imagined, let alone intended. A constitution is a living document, the interpretation of which will evolve over time to reflect changes in broader society. Yet it is a fine balance between reflecting societal change and inducing it. I would argue that rather than being pulled by those changes, the Charter has often been doing the pushing.
Finally, many people mistakenly believe the Charter is about individual rights. It is not. We are not all equal before the law. In many cases, group rights trump individual rights. Consequently, if you are an aboriginal, a catholic or a francophone, to take three examples, you may have "rights" that the rest of us don't. In effect, individual freedom still sits at the back of the bus.
All the same, I think Canada is better off with an imperfect Charter of Rights and Freedoms than without. For that, Pierre Trudeau and the Liberal Party deserve our appreciation. But please, spare us the mock indignation about Prime Minister Stephen Harper's refusal to celebrate the anniversary.
After all, it was Conservative Prime Minister John Diefenbaker, with his 1960 Bill of Rights, who took the first important step to enshrine Canadians' rights in law. If Pierre Trudeau's Charter of Rights is to truly unite Canadians, then it must protect the rights of all Canadians, not just the favoured causes of the left. Until it does, one should not be surprised that some, like Stephen Harper, do not put it up on a pedestal.
How can a document copied the world over and held up as an example of a proper modern constitution be reviled by these people!
The bill of rights was intended to be just like the Charter, but judicial conservatism emasculated it from the beginning by saying that it only preserved old rights and didn't expand any unforseen new ones. The Charter pretty much moves that Bill of Rights forward and gives it teeth. To say that the Bill of Rights was the right thing while the Charter was the work of the left is disingenuous. The ideology behind both was the same. The right wing only prefers the Bill of Rights because in the end, it was pretty much worthless as the paper it wasn't printed on.
That's what the rightwing would really like: no enshrinement of legal rights.
And I agree with the other commenter: why would you attempt to turn this into a Conservative accomplishment? It clearly isn't one. Irwin Cotler wrote an excellent article on this subject today for the HP, so I wont repeat his reasoning here. All progress builds on the accomplishments and contributions of those coming before us. Based on your logic, no one would ever be responsible for anything because you could always go back further in the line and hand credit to someone else. So applying your argument to history, it was actually the NDP in Saskatchewan who are responsible for the Charter. Lets just cut out that middle man (Diefenbaker). But wait, we might as well be accurate and just give credit to the States. See where I'm going with this? Don't you find the Conservative response to the Charter anniversary a little childish?
Quebec is an interesting case. Although the educational rights of the protestant minority were initially protected in the BNA Act, a subsequent constitutional amendment removed these protections with the establishment of linguistic school boards. That said, the linguistic rights of the English minority are seriously circumscribed. While I was able to secure a certificate of eligibility for my daughter to attend English schools, English speakers who move to the province from other countries do not have that right.
As to Diefenbaker, I believe there is insufficient recognition of his contribution to individual rights in Canada. Many of the other comments here confirm that impression. If we are going to cut out the middleman, why not just stop with the Magna Carta?
People certainly do recognize the contributions of Diefenbaker to individual rights in Canada, including the Liberal Party. When the Conservatives downplay the contribution of Trudeau in the creation Charter, they are being intellectually dishonest and it is quite telling about what kind of a party they really are. Willing to revise history just to serve their visceral hatred of Trudeau.
And I agree, lets go all the way back to the Magna Carta then.
Your second point on how the Charter is responsible for changing Canadian society, rather than responding to change, lacks detail. Could you perhaps cite some case law if you are going to make such an assertion?
Even if you agree that Diefenbaker was the mover of this idea, then at least the fact that our constitution is the most copied charter in the world, beating out the Bill of rights in the US. Is that not something to celebrate, something to be proud of as Canadians?
the problem with 'causes of the right' is that more often than not they protect only corporate rights and not individual rights.