Keynote Address by Professor Errol Mendes delivered at the
18th Annual Eid-ul-Adha dinner October 30, 2012
Your Excellencies, ladies and gentlemen, salaam ‘alaikum ‘Eid Mubarak to everyone here celebrating with our Muslim fellow citizens and distinguished guests, I hope you all have an enjoyable day Baarak Allaahu feekum.
In the short time that I have to speak, I would like to also celebrate with you the 30th anniversary this year of a document called the Canadian Charter of Rights that has also impacted on the Canadian community in all its diversity from coast to coast to coast.
There are moments in the history of a people and a country that profoundly affect the evolution of that society in a way that changes them forever. There was such a transformation in Canada on April 17, 1982, when the Queen signed the Canadian Charter of Rights and Freedoms.
The Charter was a product of the aspirations of PM Pierre Trudeau and his followers to unify their country under a document that they hoped would produce a common citizenship, which would unite French and English and all the communities that constituted the emergence of a multicultural and global society.
Trudeau also hoped the Charter would bring Canada into the mainstream of the international human rights movement triggered by the horrors of World War II.
The Charter was also the product of a ferocious desire of those citizens who wanted to see their identity and rights not left out of this new, vibrant vision of Canada.
Thus women’s groups, disability rights groups, ethnocultural groups, linguistic minorities, religious communities and other equality seeking groups fought and succeeded in having their identity and rights recognized in the Charter.
The Charter was also the product of a globally unique form of Canadian accommodation between majority rule in a parliamentary democracy and the fundamental values and rights of Canadians.
This was accomplished first by stating in the very first article that rights can be subject to reasonable limits that can demonstrably be justified in a free and democratic society.
Second, the “notwithstanding clause” of the Charter allows legislatures to override rights in extreme situations and there has, rightly, been great political restraint in the use of this safety valve. Charter review can lead to the striking down or judicial refashioning of the law to bring it into line with the rights in the Charter.
For Canadians who were accustomed only to judicial policing of the division of powers between levels of government, this change in 1982 was at the core of the transformation of the country and its people.
Celebrating 30yrs of the Charter this year, the supporters of not only the Liberal legacy of Pierre Trudeau, but the NDP and Conservative Premiers who also were the architects of the Charter along with the Canadian people have seen the ups and downs of their aspirations, but there is evidence that it has transformed the country.
The Charter, in several public opinion polls over the years, is viewed as the most important constitutional document of the country, even in Quebec, eclipsing, ironically, the venerable Constitution Act of 1867 that brought the country into being.
While Canadians may not know the details of the Charter, they intuit that it is the bulwark of their fundamental values of democracy, equality, freedom and human dignity. These are the bonds of the Canadian community that I celebrate with you today as we celebrate the bonds of faith of the Muslim community worldwide at this Eid-ul-Adha feast.
From the birth of the Charter, the courts, especially the Supreme Court, has been guided by the values of proportionality and contextual justice in interpreting both the substantial sections of the Charter and leaving legislatures room to enact reasonable limits on rights in the collective interests of society.
The first post-Charter Supreme Court, under the leadership of Chief Justice Brian Dickson, faced its new role boldly. It rejected the timid interpretations of the equality rights guarantee by former Supreme Court decisions under the Canadian Bill of Rights and entrenched a substantive interpretation of equality.
It upheld the hate propaganda law to ensure the equal citizenship of minorities in our multicultural society.
The court also extended the protection of the Charter to refugee claimants and struck down the law on abortion.
It upheld the fundamental freedoms of religion and expression while also ruling that the collective linguistic rights of Quebecers under Bill 101 could not totally eliminate individual rights. Outside the strict limits of the Charter, the court also recognized and strengthened certain aboriginal rights.
Subsequent decisions of the Supreme Court were sometimes critiqued as improper judicial activism by those who did not like a particular decision but it was not uncommon for the same critics to praise other decisions of the Supreme Court like the ones that upheld the child pornography laws of the Conservative Mulroney government
In a similar fashion many civil society groups have praised the progressive interpretations of the Charter, such as the inclusion of sexual orientation in the equality guarantee or upholding the constitutionality of same sex marriage.
Some of the same groups have criticized the Court upholding the rights of the state to protect Canadians against terrorism and national security threats that they assert undermine civil liberties and the sanctity of the open court system. Others have praised the Courts in this area for upholding the principle that democracy is not a suicide pact.
Some of the criticism may have tempered the original Charter enthusiasm of the courts, but there are few, if any Canadians who do not regard the Charter as a bedrock of Canadian citizenship
Some have argued that the initial strengthening of the equality provisions was watered down by later decisions and, more recently, the court has been reluctant to render decisions in favour of rights that would cost huge draws on the public purse.
Examples have included refusing to grant a right to welfare, or expensive treatment for autistic children, and allowing the Newfoundland government to withhold millions in pay equity owed to female employees. There seems to be a growing acceptance by the courts that it is not its role to second-guess legislatures on economic and social policy. However, that too may be changing.
In 2005, a slim majority of the court struck down a Quebec law that prohibited access to private medical insurance for publicly available health care. Some fear that this ruling and others coming up on the same issue in other parts of Canada may well usher in a two-tier health system in Canada.
In a similar fashion the Supreme Court has ruled that security concerns cannot completely deny the right of fair hearing to those held under security certificates and that Canadian officials can not be complicit in the torture of Canadian citizens in the case of Omar Khadr.
If the purpose of the Charter was to cement a common citizenship in an often ruthless global economy and society, those aspirations have been and will continue to be severely tested.
In the next 30 years , there may well be Charter-based demands that governments do more to protect the most vulnerable, including the disabled, the unjustly discriminated, the unemployed, workplace issues relating to the burden of looking after both children and elderly parents, and the rights of refugees and asylum seekers. In addition, the mutating face of terrorism, organized crime and other societal threats will bring rights in conflict with the search for protection of our people and communities in an increasingly dangerous world. The representatives of our police forces present today will be at the forefront of the search for balance of rights and security in these dangerous times.
In the face of such challenges, those who fought to have the Charter become part of the fabric of Canadian society must fight to ensure the original vision does not weaken because it speaks to the nobility of the Canadian spirit and of all Canadians. I have argued elsewhere that the way we have tried, sometimes not always with success, to respect the rights of the individual and minorities while enhancing the peace, order and good government of our free and democratic society is a global template for those that are still struggling to find that balance.
I would like to end my presentation by reading out an initiative that I started when there were grave challenges to the unity of our Canadian community during the Meech Lake Constitutional Discussions in the early 1990s when the threat of Quebec separating from the rest of Canada was at its highest. In the discussions that ultimately failed to reconcile the interests of Quebec and other provinces, I felt that there was not a sufficient attempts by the First Ministers to showcase what the great legacy of diversity, accommodation and respect that the Country has to offer all its peoples as another way of uniting the country. To remedy this, as an advisor to one of the parties involved in the negotiations I suggested adding a Canada Clause at the beginning of original Canadian Constitution, to bring our community together in a common cause of citizenship just as the Charter was intended to do. The Canada Clause that I PROPOSED TO THE FIRST MINISTERS AT THE FIRST MINISTERS CONFERENCE ON THE MEECH LAKE ACCORD IN THIS VERY BUILDING IN JUNE 1990 WAS AS FOLLOWS:
Let me then describe the spirit of our nation in the form of a Canada clause that could become a preamble to the fundamental law of our Constitution. It goes as follows:
“Whereas the spirit of the nation was born in the ancestral homes of the first nations of the land,
“And whereas the people of Canada recognize as a fundamental characteristic of the Constitution, the unique, proud and dignified nationhood of the first peoples of Canada vesting in them the full protection of their existing and inherent treaty and aboriginal rights,
“And whereas the spirit of the nation was further formed from the pact of fraternity and co-operation that survived the battlefield between the first English- and French-speaking settlers of the land,
“And whereas the people of Canada recognize as a fundamental characteristic of the Constitution, the linguistic duality of Canada that gives succor to the English- and French-speaking minorities across the land, and affirms the role of the Quebec and Canadian governments and legislatures to preserve and enhance the distinct francophone society, culture and language in Quebec and North America,
“And whereas the spirit of the nation has been nurtured by the evolving multicultural reality of its people,
“And whereas the people of Canada recognize as a fundamental characteristic of this country the linguistic, racial and cultural diversity, present and future, of all regions of Canada,
“And whereas the Canadian peoples have demonstrated their unique identity and through it promoted a peaceful society to the community of nations through their diversity of regions, cultures and languages, creating a union that enshrines both respect for difference and for the fundamental individual and collective rights of humanity, including substantive equality for the disadvantaged and those discriminated against by reason of gender, racial and ethnic origins, colour, religion, age and disability.
“Therefore we the people of Canada declare the following to be the supreme law of the land:”
I thank all of you and the organizers for giving me the opportunity to share my thoughts with this community of the Eid-ul-Adha gathering.