Analysis: Canada’s Charter remains a flawed document that no politician dares try to fix

Queen Elizabeth II signs Canada's constitutional proclamation in Ottawa on April 17, 1982 as Prime Minister Pierre Trudeau looks on.
Queen Elizabeth II signs Canada's constitutional proclamation in Ottawa on April 17, 1982 as Prime Minister Pierre Trudeau looks on. THE CANADIAN PRESS/Ron Poling

Federal Liberals, led by Prime Minister Justin Trudeau, celebrated the 35th anniversary Monday of the day when Trudeau’s dad, Pierre, watched Queen Elizabeth II sign Canada’s Constitution and its Charter of Rights and Freedoms.

This day, to many Liberals, is second only in significance in Canada’s history to the 1867 act of Confederation.

“The spirit and substance of the Charter are at the heart of Canada’s success, and should inspire us all as we work toward a fairer, more just and compassionate society.”

Trudeau’s statement contained impossible-to-miss echoes of his father.

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“The Charter both protects and connects Canadians from coast-to-coast-to-coast. It has become an internationally-renowned document,” Justice Minister Jody Wilson-Raybould said in a separate statement she issued Monday.

Her department had organized a 35-day countdown to April 17 to let Canadians reflect on and marvel at the wonder that is Canada’s Charter of Rights and Freedoms.

For federal Liberals, the Charter is in their DNA. You cannot be a federal Liberal unless you have an unshakeable belief in the fact that, as Liberal MP Peter Fragiskatos said on Twitter Monday, that “the Charter encapsulates the essence of our democracy and defines who we are as Canadians.”

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And yet, for Quebecers, most Conservatives, many New Democrats and many aboriginal Canadians, the Constitution and the Charter are problematic documents, something to be challenged in order to be Canadian.

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Quebec, of course, never signed on to the 1982 deal that gave Canada its Constitution and Quebec — a province which has a memory like an elephant when it comes to its grievances — has never forgotten that.

Indeed, on April 17, 2002, at the 20th anniversary of the Charter, the Parti Québécois premier of Quebec, Bernard Landry, put the following motion to a vote in Quebec’s provincial legislature:

“That the National Assembly reaffirm that it never acceded to the Constitution Act, 1982, whose effect was to lessen the powers and rights of Quebec without the consent of the Quebec Government, of the National Assembly, and that this Act is still unacceptable for Quebec.”

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It passed unanimously — 106 to nothing with no abstentions. Among those voting in favour were two future Quebec premiers — the former federal Progressive Conservative turned Quebec Liberal, Jean Charest, and PQ MLA Pauline Marois — as well as a future leader of Her Majesty’s Official Opposition in the House of Commons, Thomas Mulcair, then a Quebec Liberal MLA.

Quebec Premier Rene Levesque and Manitoba Premier Sterling Lyon (R) share the same couch at 24 Sussex Dr. as the premiers meet behind closed door with Prime Minister Trudeau in an effort to come to an agreement on re-writing the Canadian Constitution Sept. 12, 1980. THE CANADIAN PRESS/POOL

In 2015, Mulcair would campaign in a general election in defence of the right of a Muslim woman to cover her face during citizenship ceremonies. He had no choice but to cite the Charter for that defence, a Charter he and many Quebecers had found “unacceptable for Quebec.”

NDP support in Quebec immediately began to melt.

These days, New Democrats like Romeo Saganash are pushing the Trudeau Liberals to honour election commitments to implement the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP).

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Liberals, having won power, seem less enthusiastic about UNDRIP and have voiced concerns that full implementation of UNDRIP would put their cherished Charter rights at risk.

I once asked Mulcair if he thought the Charter was a big deal. He conceded it was certainly important but he thought a bigger deal was the Royal Proclamation of 1763, the order made by King George III which set out how the British, French and aboriginal peoples of Britain’s territory in North America would be administered.

For their part, Conservatives never liked the Charter of Rights and Freedoms because, in their eyes, it not just empowered judges but actually compelled judges to interfere in the realm of public policy that was, until the Charter came into force, the exclusive purview of elected legislators.

READ MORE: Proposed roadside alcohol testing rules could violate Charter rights

Abuses by so-called unelected, unaccountable activist judges has been a rallying call for Conservatives ever since. Liberals, as if to rub it in to the vanquished Conservatives, restored a federal program the Conservatives had cancelled which provides funds for lawyers and other groups who want to spur those ‘activist’ judges on.

“We were proud to announce the reinstatement of a modernized and expanded Court Challenges Program, which will clarify and strengthen the constitutional rights of Canadians by providing financial aid to groups who seek to bring test cases,” Wilson-Raybould said in her statement Monday.

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Stephen Harper was prime minister when the Charter turned 30. His Conservative government, which was busy marking anniversaries associated with Sir John A. Macdonald, the War of 1812, and the First World War, barely shrugged when the 30th anniversary of the Charter came and went in 2012.

“In terms of this as an anniversary, I think it’s an interesting and important step,” Harper told reporters five years ago.

“But I would point out that the Charter remains inextricably linked to the patriation of the Constitution and the divisions around that matter, which as you know are still very real in some parts of the country.”

For some Conservatives, the Charter is merely “an interesting and important step” that adds (and often in not helpful ways) to the work done by John Diefenbaker and his Bill of Rights. That Bill of Rights pleased Conservatives because, among other things, it guaranteed property rights. Pierre Trudeau’s 1982 Charter of Rights and Freedoms does nothing to guarantee property rights.

Partisan politics aside, what remains most remarkable 35 years after Canada’s Constitution was adopted is that no leader of any mainstream party — and that includes both the younger Trudeau and Harper — nor any candidate in current Conservative and NDP leadership contests, is at all interested in finally bringing Quebec into the constitutional fold.

The Liberals may love the Charter. Conservatives, New Democrats and others may find flaws with it. But no politicians anywhere in the country are ready to risk any political capital to defend, enhance or fix Canada’s 35-year-old Constitution.


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