04/20/2012 02:31 EDT | Updated 06/20/2012 05:12 EDT

Nice Try, But the Bill of Rights Is No Charter

As we celebrate the 30th anniversary of the Canadian Charter of Rights and Freedoms, the Harper government insists on drawing reference to the Canadian Bill of Rights, casting it as not only the catalyst for the Charter, but indeed itself as a great instrument of rights protection. However, this is to misstate history, to minimize the importance of Charter, and to marginalize the revolutionary impact that this document has had not only on our laws, but on our lives.

To be sure, Canadians had rights before the Charter. But, for all the government touts the statutory protection in the Canadian Bill of Rights, it ignores that that is exactly what it was: a statutory piece of legislation, applicable only to federal laws, and without any remedial protection at all. Indeed, it was judicially treated as a canon of construction rather than overriding federal legislation and as such was extremely limited in scope and effect.

The inadequacy of the Bill of Rights is precisely the reason the Charter was so necessary. Canada had experimented with rights protection legislation only to be told by the courts that it was not as effective as perhaps legislators had hoped. As such, what was needed was a Constitutional document -- a law to be supreme above other laws -- and with a scope that extended far beyond just that which is Federal.

While it is certainly fair to say that the Bill of Rights influenced the Charter, its text was also influenced by international human rights law and the international human rights movement. Indeed, the Charter draws direct inspiration from the UN's Universal Declaration of Human Rights, which, it should be noted, has a Canadian connection in that its lead drafter at the UN was Canadian John Humphrey.

Moreover, the Charter's passage was an extraordinary feat, far more complex than the passage of the Bill of Rights by a mere constitutional majority. Adopting the Charter required not only Parliamentary action, but political initiative to bring the provinces together, as well as embarking on the patriation process in what became a monumental moment for Canada as a country.

And, it should be noted, the Charter was not merely the product of legislator's minds -- it was the culmination of extensive consultations with groups who came to Parliament and whose submissions helped craft a document that was far different than that which Prime Minister Trudeau first proposed.

To minimize all this, as the Government has sought to do with its repeated reference to the arcane 1960 Diefenbaker Bill of Rights, represents affront to Canadian history. The Conservatives are attempting to draw a false equivalence between an act of Parliament with limited effect and a monumental, expansive, and purposive rights-enshrining document whose passage required unprecedented effort, and which represents a mammoth advance in both the promotion and protection of rights.

It is most regrettable that the Government believes that the 30th Anniversary of the Charter warranted no more than a press release, this in contrast to the $4,807,403 it is celebrating on War of 1812 commemorations this year. Indeed, for its focus on history, one could at least hope it would invest in getting our nation's legal and constitutional history correct.