The Charter: An Imperfect Document

Today is the thirtieth anniversary of Canada’s formal constitution, the Constitution of Canada and the Canadian Charter of Rights and Freedoms. The anniversary has triggered some stiff debate on how it should be marked. Prime Minister Stephen Harper has opted, essentially, not to celebrate the patriation of the constitution at all. Journalists, opinion makers, partisans and lovers of the law have all attacked Mr. Harper for failing to celebrate this document of national importance. Instead of piling on the Prime Minister I think it might be worthwhile to explore what he may be considering.

While many Canadians cherish the rights inside the Charter and value its role in shaping our country into a more equal place, there are those who have major, justified issues with our constitution. I hate to boil this down to simple partisanship so early in this post, but it seems to me that Liberals want the Constitution to be celebrated more than anyone else. It is only fitting given that the patriation of the constitution was Prime Minister Trudeau’s crowning achievement. When Craig Oliver interviewed Justin Trudeau (Liberal – Papineau, QC) on CTV’s April 15, 2012 episode of Question Period, he discussed the constitution in terms of his father’s legacy. Trudeau suggested that the government’s silence on the Charter was motivated by partisanship.

I feel that many who are cheering on the Charter forget the very recent controversies that surrounded it. Several major issues were ignored or overlooked. Prime Minister Brian Mulroney tried twice to address the issues of the Canadian constitution that Trudeau introduced. Both the Meech Lake Accord and Charlottetown Accord failed, and after a decade of constitutional reform issues the Canadian government has run screaming from any talk of it.

The Province of Quebec never ratified the Canadian constitution. The centre of the Meech Lake Accord was to bring Quebec into the fold. The second attempt, Charlottetown Accord, included the voices from Canada’s First Nations, Metis and Inuit communities. The Accord would have recognized Quebec as a distinct society, increased the sovereignty of Aboriginal peoples, reformed the Senate and entrenched key social program priorities. This Accord also failed. The appetite for Canadian constitutional debate quickly waned after much of the nation’s political capital had been spilled in the process.

The 1993 federal election saw the dissolution of the largest majority government in Canadian history and the fracturing of Canada into distinct regional power bases as the Reform and Bloc Quebecois rose from the ashes of constitutional reform. Mr. Harper and a generation of politicians came up with the mist of a deeply divisive constitutional debate; one they are not fond of recalling, nor celebrating.

Those limitations identified in the original constitution in 1987 and 1992 still exist. The patriation of constitution was a major opportunity to address concerns in Canada, and it was missed. I find our constitution to be ineffective for three key reasons. One, it fails to offer adequate provisions for Aboriginal Canadians. Two, the constitution has locked Canada in with an undemocratic Senate, and makes reform to the House of Commons difficult. Three, the amendment formula is so difficult to achieve that meaningful constitutional reform has only been attempted as large omnibus movements (like the Accords), or minor issues, like renaming Newfoundland, Newfoundland and Labrador. In fact, the government has tried to work around the constitution, rather than amending it!

Because our constitution is so difficult to amend the Parliament and Supreme Court have had to bend over backwards to make the constitution fit instead of simply amending it. I think the best example of this is Gay Rights and Section 15 of the Charter. The Charter does not provide for the constitutional protection of homosexuals. I think the Charter should simply be amended to include sexual orientation. Instead, given the difficulty, courts and legislatures have interpreted sex to mean sexuality, though the intent at the time was gender protection.

The Canadian Charter of Rights and Freedoms is an important document, and as the New York Times recently reported, it is becominga model for the world. However, it is still deeply flawed. During the NDP leadership campaign Nathan Cullen (NDP – Skeena-Bulkley Valley, BC) was fond of saying Canada is a nation that works bad in theory and good in practice. To me this suggests that Canada’s constitution has put in legal barriers that hinder our effective governance, that our politics and extralegal arrangements help overcome.

In general Canadians like their constitution, including, as Andrew Coyne recently pointed out, Quebecers. It is interesting to contrast American and Canadian attitudes to their respective constitutions. There are factions in both nations that fetishize their govern documents, and in fact it is a dominant ideology within the United States. I hope Canada never goes that route. Our governing document should be challenged and considered, and in my opinion, amended. It is not perfect. To be clear I am not advocated for dozens of amendments every year, but a few periodic changes that have broad consensus would be valuable.

So, here’s to the Canadian Charter of Rights and Freedoms and the Constitution of Canada, and may it continue evolve in time to govern our country even better in the future.