Charter has transformed Canada
Abortion, same-sex marriage, assisted dying entrenched in document
British Columbians can blame Canada’s Charter of Rights and Freedoms for the agonizing two-week wait to find out who won their province’s recent, photo-finish election. They were kept in suspense while crucial absentee ballots were counted — a process that, as it turned out, changed nothing, leaving the province in an unprecedented state of instability.
If not for the charter, there would have been no absentee ballots to count.
British Columbians can blame Canada’s Charter of Rights and Freedoms for the agonizing two-week wait to find out who won their province’s recent, photo-finish election.
They were kept in suspense while crucial absentee ballots were counted — a process that, as it turned out, changed nothing, leaving the province in an unprecedented state of instability.
If not for the charter, there would have been no absentee ballots to count.
Back in 1983, when the charter was just one year old, two young British Columbians who were studying law in Ontario challenged B.C.’S failure to provide them with a way to cast ballots while out of province.
B.C.’S Court of Appeal eventually agreed with the students that the lack of a provision for absentee voting violated their democratic right to vote, as guaranteed in the charter.
It was an early taste of the kind of profound impact the charter was going to have on Canadian society.
Sunday shopping. Same-sex marriage. Medical assistance in dying. No legal restrictions on abortion.
Those are just some of the momentous changes the charter has wrought since it was entrenched in the newly-patriated Constitution on a rainy April day 35 years ago during a black-tie signing ceremony — the solemnity of which was interrupted by justice minister and future prime minister Jean Chretien muttering an oath upon discovering the nib of the pen was broken, provoking a rare regal laugh from the Queen.
“The Canadian charter has had a lasting and positive impact on our country,’’ Beverley Mclachlin, chief justice of the Supreme Court of Canada, told a recent Senate symposium celebrating the country’s 150th birthday.
“Not only has its enactment proved to be one of the defining moments of the last 150 years, the charter has quite simply — poll after poll tells us this — become part of the Canadian identity.’’
Indeed, in a 2015 Statistics Canada survey, 70 per cent of Canadians named the charter as a very important national symbol — beating out the Maple Leaf flag, the national anthem, the red-coated Mounties, hockey and the beaver.
“I think it’s made an enormous impact on the lives of ordinary Canadians,” says Josh Paterson, executive director of the B.C. Civil Liberties Association, which has led a number of charter challenges to federal and provincial laws, including spearheading the landmark case that saw the prohibition on medical assistance in dying struck down.
“Many people may not even realize that some of the rights and freedoms they enjoy today, or ways in which the government might not interfere with them, were as a result of the
“While the charter has been very influential and has forced a number of changes to the law, it’s quite interesting when you think about the changes, they’re actually sort of part of the zeitgeist that has affected other similar western countries.” Peter Hogg, Canada’s foremost constitutional scholar
charter.”
In Mclachlin’s view, the charter has become such a popular icon because it gives expression to the fundamental values Canadians hold dear — “the values that keep us together as citizens, the values that make our country work” — while providing a mechanism for “balancing conflicting interests and goals in a complex, multicultural society.”
Of course, not all the transformations the charter has wrought have been warmly welcomed by all Canadians.
Indeed, even Jean Chretien, one of the charter’s key architects, was initially uncomfortable, at least politically, with unrestricted access to abortion and the expansion of gay rights.
“Being a Roman Catholic from rural Quebec, it was not easy,” he recalls.
In June 2003, just as Chretien was anticipating his retirement as prime minister, the Ontario Court of Appeal ruled that the traditional definition of marriage
violated the equality rights of gays and lesbians. The ruling immediately legalized same-sex marriage in the province.
“It’s the last problem I wanted to have. I was leaving a few months later,” says Chretien.
He ultimately decided not to appeal the ruling and instead referred a draft Civil Marriage Act to the Supreme Court for advice on its constitutionality. The act was eventually enacted in 2005.
At the time, polls suggested Canadians were badly divided over the issue. Emotions ran high, with Catholic priests actively campaigning against same-sex marriage — one bishop actually said Chretien would burn in hell — and Alberta Premier Ralph Klein threatening to invoke the notwithstanding clause to override the charter.
Yet today same-sex marriage, adoption and divorce have become commonplace.
“That’s what’s so amazing for us to sit back now, we’re coming up to 14 years of marriage, it really is kind of ho-hum now,’’ muses Michael Stark, one of “the two Michaels” who became the first gay couple in Canada to legally wed just hours after the Ontario appeal court ruling.
“The charter enabled us to argue the same-sex marriage case on strictly legal grounds. It put aside all the prejudices and all the stuff that gets thrown at you by the church and the religious right and it just brings it down to basic legal principles,” he says.
“It was, from my point of view, a proud moment as a Canadian to think that your charter of rights can help make your life better and more equal, especially as a minority.”
It was, agrees his partner, former Crown prosecutor Michael Leshner, “a profound social change that very positively and directly affected so many Canadian lives.’’
Peter Hogg, Canada’s foremost constitutional scholar, believes the charter has not so much revolutionized Canadian society as sped up changes that would likely have occurred eventually in any event.
“While the charter has been very influential and has forced a number of changes to the law, it’s quite interesting when you think about the changes, they’re actually sort of part of the zeitgeist that has affected other similar western countries,’’ he says.
However, there is one area — myriad court rulings that have strengthened the rights of those accused of crimes and limited police powers — where Hogg thinks change may not have happened without the array of legal rights enshrined in the charter.
Whereas the judiciary is sensitive to legal rights, among the general populace he suspects “there actually isn’t much support for people who are accused of crime because I think there’s probably a widespread assumption that they’re probably guilty anyway and don’t deserve particular consideration.’’
But even when a good chunk of the population is initially upset by a charter ruling, Hogg marvels at the way Canadians, by and large, accept it and move on _ unlike the United States, where abortion, for instance, gets re-fought in every election. He puts that down to Canadians’ enormous respect for the charter and for the judiciary, which is not politicized as it is in the U.S.
It may also reflect the fact that judges, while not as beholden to public opinion as politicians, are nevertheless conscious that the court “can’t be either too far ahead or too far behind where society stands on these issues,” says University of Waterloo political scientist Emmett Macfarlane, who has written extensively about the Supreme Court and the impact of the charter.
“If the court was constantly rendering decisions that the public simply disagreed with, eventually it would have a legitimacy problem,” he says. “I think that actually conditions some of their decisions.’’
While some critics still rail about “judge-made law” and the charter usurping the supremacy of Parliament, Macfarlane says it hasn’t lived up to the worst fears of those who believed 35 years ago that it would amount to “handing over the keys to the car to judges.”
“The charter has produced a significant shift in power to the courts so I don’t want to understate it,’’ says Macfarlane.
“But the government wins two-thirds of charter cases at the Supreme Court. So it’s not as if we can say the courts have completely taken over the policy-making authority of government.”