The Association for Canadian Studies
Canadian Rights and Freedoms: 20 Years Under the Charter
April 20, 2002
Rosalie Silberman Abella
Justice, Court of Appeal for Ontario
In 1929, overturning the Supreme Court of Canada’s decision that “Persons” in the constitution excluded women, Lord Sankey, on behalf of the Privy Council, directed the Court to interpret the Canadian constitution as a “living tree capable of growth and expansion”, and in a “large and liberal”, not a “narrow and technical” way. The Supreme Court of Canada has, in recent years, taken this direction very seriously in its interpretation of the Charter and has, as a result, reminded us of Isaiah Berlin’s aphorism that there is no pearl without some irritation in the oyster, since there is no doubt that this large and liberal interpretation has produced some large and illiberal irritation.
Our constitutional entrenchment of the Charter was designed to both represent and create shared, unifying national values of compassion, generosity and tolerance. It is the mirror in which we see our rights reflected and obliges us to ask “Are we the fairest of them all?”. But it is also true that if Isaiah Berlin was right that there is no pearl without some irritation, the Charter is by now a whole necklace.
I think it is fair to say that prior to the Charter, and based in no small measure on the unspectacular judicial response to the 1960 Bill of Rights, those who felt that legislatures were better protectors of rights than courts had a solid evidentiary foundation for their views. During the patriation debates, when Allan Blakeney, the NDP Premier of Saskatchewan, joined forces with the Conservative Premier of Manitoba, Sterling Lyon, to try to prevent the entrenchment of a Charter and preserve Parliamentary supremacy, he asked, not without justification, whether going to court to litigate is “as effective as a right to lobby for a change in the law.” His was a fear less of judicial activism, and more of judicial inactivism.
Then along came the Charter’s entrenchment and the serendipitous presence on the Supreme Court of Brian Dickson and Bertha Wilson, the Fred & Ginger of the Charter, who choreographed some dazzling new routines and consistently brought the house down. In that first decade, when the Charter was young and almost universally adored in English Canada, it seemed that it would deliver on every nation-building promise that had inspired it. It was the noble risk that had paid off.
In the second decade, however, when the Charter was in its teens, parts of the nation started to rebel. Almost imperceptibly at first, when the Charter became an adolescent, public pride in its grasp seemed to turn into strident fear over its reach. That is when we got the panic attacks about the fate of democracy. What had always been seen as a complementary relationship between the legislature and the judiciary, was recast as a competitive one.
And to what end? To stop the flow of rights streaming from the courts. But the criticisms would prove to be a finger in the dike. They could stop neither the flow nor the people along the shore cheering the progressive currents.
And here is the irony of where we find ourselves today. We spent the last decade listening to a chorus moaning over the fate of a majority whose legislatively endorsed wishes could theoretically be superceded by those of judges, only to learn in poll after poll that an overwhelming majority of that majority is happy, proud and grateful to live in a country that puts its views in perspective rather than in cruise control; who prefers to see judicial rights protection as a reflection of judicial integrity or independence rather than of judicial trespass or activism; and who understands that the plea for judicial deference may be nothing more than a prescription for judicial rigormortis.
What about the future? Yogi Berra reminded us that “Predictions are hard to make, especially about the future.” Here is why I think he was right. In 1962, twenty years before we had the Charter, we had the Bay of Pigs, which we could not have predicted 20 years earlier when Russia was our ally, which we could not have predicted twenty years earlier in the aftermath of the Bolshevik Revolution, which we could not have predicted twenty years earlier when the Czar ruled with a heavy and secure hand.
Nor could we have predicted any of the following events, each of which transformed our view of rights: the two World Wars, the Depression, the Holocaust, John F. Kennedy’s assassination, Nixon’s trip to China, the fall of the Berlin Wall, the Canadian Charter of Rights and Freedoms, and a boldly creative Supreme Court of Canada.
So how to predict the next 20 years? With trepidation, but also with optimism. I have no great predictions to make about the future but I have some hopes, the primary one being that we will have more of what we have now.
By adding the Charter in the last 20 years to the public’s arsenal of rights protectors, we have not only thereby added more rights, but have also added expectations that more needs will be treated as rights and not merely as aspirations. Globalization, technology, diversity, and deficits, the foundational quartet conducting public policy before terrorism got to the podium, are not about to leave the stage anytime soon. And it will not be long before they spawn a deluge of repercussive rights demands, primarily about access – to health, to education, to physical and economic security, to privacy, and, of course, to justice itself.
And twenty years from now, those demands in turn will lead, as now, to people who criticize the courts for doing too much and the legislature for doing too little to stop them. But as we grow more comfortable, as we should, with the inevitability of the criticisms, the more both the courts and the legislature will comfortably do what they have to do without looking over their shoulders, confident in the knowledge that the rights business is booming and that there is more than enough to go around.
We will never stop the debates over the role of the Charter, the qualifications of its interpreters, or the muscularity of its remedies. Nor should we even try. Constitutionalizing rights is a mark of a secure and mature democracy, as is the controversy surrounding them. No less is the Charter secure and maturing, because rights themselves are works in progress. But at least there is progress.
Twenty years from now a new generation of children will have grown up with the values of the Charter as moral tutors and the preeminence of rights as the core of their civic curriculum. That makes me feel very positive about the future and, at the same time, very lucky. It is an honour to participate in the Charter’s 20th Birthday.