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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.