Constitutional
forumconstitutionnel
Centre for Constitutional Studies Centre d’études constitutionnelles
Volume 16, Number 2, 2007
Constitutional Forum constitutionnel
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51 The Constitution Act, 1982: the Foreseen and Unforeseen Hon. Barry L. Strayer, Q.C.
63 L’exil intérieur des Québécois dans le Canada de la Charte Guy Laforest
71 Charter Checks and Parliamentary Balances Dennis Baker & Rainer Knopff
79 Sometimes Constitutions are Made in the Streets: the Future of the Charter’s Notwithstanding Clause John D. Whyte
89 The Unlikely Union of Same-Sex Marriage, Polygamy and the Charter in Court Matthew Hennigar
Constitutional Forum constitutionnel Volume 16, Number 2, 2007
The Constitution Act, 1982: the Foreseen and Unforeseen
Hon. Barry L. Strayer, Q.C.*
“. . . not exactly what we had in mind.” liott Trudeau. He asked me to develop a position paper on a constitutional bill of rights, initially for use by Cabinet, and then to be elaborated Introduction into a discussion paper in aid of negotiation I started preparations for my first constitu- with the provinces for the adoption of a Charter tional conference in an office overlooking Was- of Rights. The end product, with some modifi- cations, was indeed published in a 1968 position cana Lake nearly forty-seven years ago. I was a 1 young lawyer in the Department of the Attor- paper. In that year I went back to Ottawa on ney General of Saskatchewan. Prime Minister a full-time basis, eventually resigning my uni- Diefenbaker had announced that there would versity post and joining the public service. First be a Conference of Attorneys-General in early in the Privy Council Office, and later as Assis- October 1960, chaired by Justice Minister Ful- tant Deputy Minister of Justice, I was heavily ton, to seek agreement on “Repatriation of the engaged in the constitutional discussions which went on intermittently for fourteen years, and Constitution.” As I expressed interest in the 2 conference to the Attorney General, and had which resulted in the Constitution Act, 1982. I recently taught constitutional law for a year at guess it is for this reason that I have been asked the University of Saskatchewan, I was made the to address which of the developments under secretary of the Saskatchewan delegation. This this Act in the last twenty-five years were fore- involved most of the work of research and writ- seen and which were unforeseen. ing position papers and speeches. But it also in- I have chosen three areas which I regard as volved making hotel and travel reservations for the most important elements of the 1982 con- which I claimed no particular skill! Of course, stitutional amendments: namely patriation, after four such meetings in 1960 and 1961 we the Canadian Charter of Rights and Freedoms,3 reached no agreement on repatriation, but it and the constitutionalization of Aboriginal and gave me on the job training in constitutional treaty rights. In this article I adopt the analyti- reform. cal framework of that great philosopher Donald A few years later, when I was teaching full Rumsfeld, former Secretary of Defence in the time at the College of Law in Saskatoon and Bush administration, who said of the war in doing some writing in the constitutional field, Iraq: There are some things we know we know, some things we know we don’t know, and some I was invited to go to Ottawa to help develop 4 a position for the Government of Canada on things we don’t know we don’t know. This was constitutional reform. My first period there was indeed our position regarding our knowledge during the summer of 1967 when I was assigned of the future in launching these constitutional to advise the new Minister of Justice, Pierre El- reforms.
Constitutional Forum constitutionnel 51 Patriation This debate continued periodically for the next sixty years in numerous federal-provin- The term “patriation” is shorthand for the cial conferences at which agreement was never process of transferring to Canada the legal con- reached on an amending formula. The last of trol of its own Constitution. As is well known, these meetings occurred in September 1980 and when our Constitution was originally enacted it too failed. At that point, the federal govern- by the British Parliament in 1867 as the British ment, led by Pierre Trudeau, introduced a reso- North America Act, 1867,5 it made no provision lution in Parliament which requested the Queen for Canadians themselves to amend it in future: to place before Westminster a request to adopt it was, like any other British statute, amendable an amending formula for Canada and thus sign by Westminster alone. This accorded with the off on any future legislative power over Canada. colonial nature of our status as a country, albeit This initiative was condemned ultimately by the 1867 Constitution gave us most of the ele- eight of the ten provinces, the so-called Gang ments of self-government. In our first few de- of Eight, because they had not been consulted cades as a Dominion little thought was given to on the content of the resolution. Three of these the fact that we had to rely on the British to pass eight provinces (Manitoba, Newfoundland and laws for Canada in respect of our constitutional Quebec) initiated court proceedings in the form arrangements. Over time attitudes changed. of reference questions in their respective courts When Australia was federated by Act of the of appeal, with the full knowledge that the British Parliament in 1900,6 she was given the questions would end up in the Supreme Court power to amend her Constitution; this accen- of Canada. The references asked if it was le- tuated the problem of our own continuing de- gally correct for the federal government to seek pendence on the Mother of Parliaments. More and obtain a constitutional amendment from importantly, in the opening decades of the Westminster in the fashion that it did. The Su- twentieth century, particularly after Canada’s preme Court ultimately said that it was legally distinguished role in the First World War, there correct in proceeding unilaterally. The three was in this country a growing sense of Cana- provinces also asked if such a procedure was in dian nationhood. Indeed, after the Great War accordance with the conventions of the consti- Britain realized that her senior Dominions, in- tution: that is, was federal unilateralism consis- cluding Canada, had to be recognised as fully tent with accepted past practices? Seven prov- autonomous states. This position was agreed to inces in the Gang of Eight contended that no at the Imperial Conference of 1926. The result such amendment could be made in accordance was the enactment of the Statute of Westmin- with constitutional convention without unani- ster, 1931,7 which recognized this position and mous provincial consent. To this the Supreme stated that the British Parliament would no lon- Court replied that while unanimous consent ger legislate for the Dominions. However, an was not required there must be, by convention exception had to be made for Canada in respect or practice, a “sufficient measure of provincial of amendments to our Constitution. This was consent,” of which there was not here. Only On- at Canada’s request, and that request was made tario and New Brunswick supported the federal because we could not agree among ourselves as initiative.8 Not satisfied with this, Quebec ini- to how we would amend our Constitution if the tiated an additional reference question arguing British didn’t do it for us. The federal govern- that even if the agreement of every province was ment, eager to enhance national sovereignty, not required, by past practice and fundamental had been trying since 1920 to get agreement on principle at least the consent of Quebec was al- a domestic amending formula. The basic issue ways required. The Supreme Court heard and was always the same: under an all-Canadian rejected this argument.9 amending formula, how many provinces would have to agree with the federal government or After the Patriation Reference, in which the Parliament before proceeding with an amend- Supreme Court said that not unanimity but rath- ment to the Constitution? er a “sufficient measure of provincial consent”10 was necessary to bring about the constitutional
52 Volume 16, Number 2, 2007 changes contained in the federal proposal, there recent poll, residents of Quebec proved to be the was a further Federal-Provincial Conference most supportive of the Charter after twenty-five in November 1981 to seek that sufficient mea- years; in fact, 61 percent, a higher percentage sure of agreement on an amending formula, than in any other province, rated the Charter’s the adoption of a Charter of Rights, and a few impact as positive or very positive.12 This sug- other changes. Eventually all governments but gests that residents of Quebec believe that this Quebec came to agreement. The changes agreed part of the 1982 Constitution applies in Quebec, upon by the ten governments were adopted in a and that they harbour few feelings of “humili- Joint Resolution of Parliament which was for- ation” about the process that brought it to frui- warded to Westminster where it was adopted in tion.) Second, and more importantly, patriation March 1982, as the Constitution Act, 1982. was effected by a procedure approved by the body to which Quebec had on two occasions What the Government of Canada, as the willingly submitted questions as to whether her national government with primary responsibil- consent was essential for any such amendment. ity for national sovereignty, had sought for some Twice the Supreme Court said no. It must be re- sixty years was the completion of our legislative membered that it was not the Government of autonomy, a hallmark of a sovereign state. It Canada which chose that forum to determine sought to do this in a way which would be re- the political legitimacy of its amendment pro- garded as legitimate: in accordance with legal posal, that is to say, to determine the nature of requirements, but also with politically accepted any constitutional conventions governing the practices. What the federal government and the practice of achieving constitutional amend- nine provinces which endorsed the 1981 Accord ment. Indeed the Government of Canada in the leading to the Constitution Act, 1982 expected Patriation Reference objected to the Supreme was that if they proceeded in accordance with Court pronouncing on constitutional conven- the decision of the Supreme Court requiring not tions on the basis that this really involved a po- unanimity but rather a “sufficient measure of litical question — an issue of acceptable politi- provincial consent” to change our Constitution, cal conduct. Yet once the Supreme Court did so the resulting changes would be viewed as legiti- pronounce, at the insistence of Quebec, Ottawa mate by all Canadians. They naturally believed and the other nine provinces followed these in- that the support of nine of the ten provinces was structions as to the character of acceptable po- “sufficient” if, as the Supreme Court had said, litical practice. If Quebec was humiliated, it was unanimity was not required. That is what was on her own government’s initiative. foreseen in respect of patriation. Yet things did not work out that way. Many residents of Que- That being said, it is one of the major disap- bec, and some of their supporters outside that pointments following the adoption of the Con- province, continue to believe that Quebec was stitution Act, 1982 that it has not brought the “humiliated” by this process whereby changes stability and dignity to our national sovereignty were made without her consent. They go even that we expected, and were entitled to expect. further and suggest that “Quebec is not in the Legally, of course, patriation worked. Westmin- Constitution” because the separatist govern- ster can no longer make our laws for us. All laws ment and a majority in the Quebec legislature governing Canada are made in Canada. Should opposed those changes in 1981. we ever, by some chance, happen to agree on a significant constitutional amendment we could It may first be observed that other voices of make it ourselves. But the political legitimacy of Quebec did support the Constitution Act, 1982. the Constitution Act, 1982 continues to be dis- Of Quebec’s seventy-five Members of Parlia- puted by Quebec nationalists and their sympa- ment, seventy-one voted for the Joint Resolu- thizers, both within and outside that province, tion adopting the Act. And a public opinion poll and we have gone through periodic disturbances taken in May 1982 showed that 49 percent of the such as the Meech Lake13 and Charlottetown Ac- people in Quebec approved of the Joint Reso- cords,14 the 1995 Quebec secession referendum, 11 lution, with only 16 percent opposing it. (In a and most recently the resolution in the House
Constitutional Forum constitutionnel 53 of Commons recognising the “Québécois” as a to be provided by legislation in accordance with nation.15 What we had foreseen as a major con- the judgment of elected representatives. Mem- firmation of our maturity as a sovereign state bers of all political parties opposed the notion remains a source of disunity. We didn’t know of legally vested rights to employment, social we didn’t know this. security, etc. Parliament approved the acces- sion by Canada to the Declaration only on the assumption that we were merely accepting an The Charter obligation to promote such objectives.17 The first I should begin by affirming my belief that head of any government to advocate a consti- the Charter has largely met the expectations of tutional bill of rights was Premier T. C. Doug- its framers and must be adjudged a success. I las of Saskatchewan who proposed the idea at a should also affirm that we recognized that the Federal-Provincial Conference in Quebec City general language necessarily used in an endur- in 1950. No other government supported the ing constitutional instrument to describe the idea at that time. The federal Liberal Party only protected rights and freedoms meant we knew began to advocate a constitutional bill of rights in opposition to Mr. Diefenbaker’s statutory we didn’t know all of its potential applications. 18 This has proven to be true, but for the most Canadian Bill of Rights when it was under de- part I believe these interpretations have been bate in Parliament in 1960. The subject was not beneficial and within the anticipated range of formally put on the agenda of any federal-pro- outcomes we expected. I will, however, now de- vincial meeting until the Constitutional Con- scribe some outcomes which were not expected ference of 1968. This is all to demonstrate that, and which in my view go beyond the social con- historically, politicians were reluctant to give to sensus which brought about the Charter. the courts the power to make social policy. A consensus for a constitutional bill of Indeed, it is fair to say that the concept of rights, although advocated by Pierre Trudeau as a constitutional bill of rights was that of a pro- Minister of Justice and pressed by him as Prime tector of “negative rights” — that is, a protector Minister, was slow to develop. From 1968 when of citizens’ liberty and freedom of choice from it was first discussed at a Federal-Provincial the interference of government. Political, legal, Conference, down to 1980 when Ontario and mobility, and equality rights were to be guaran- New Brunswick got behind it, it had no provin- teed free of state restraint. What was not con- cial backing. The other eight provinces opposed templated was that the Charter would become its adoption until November 1981 when the fed- a road map for social entitlement programs de- eral and nine provincial governments reached signed and enforced by the courts. agreement on an Accord to seek the amend- Yet the courts, led by the Supreme Court, ments finally adopted in the Constitution Act, have found ways to dictate laws and determine 1982. social programs in ways partly foreseeable but Traditionally, Canadian politicians and of- mostly unforeseen. In at least one respect this ficials were opposed to a constitutional bill of has come about by changes made to the draft rights or any international commitment that Charter in its latter stages of development dur- would interfere with parliamentary supremacy. ing the work of the Special Joint Committee of In particular they could not accept the idea of the Senate and House of Commons on the Con- Parliament or the legislatures being ordered by stitution of Canada in its meetings of 1980-81. a court to spend money. When Parliament stud- Mainly as the result of submissions by feminist ied the United Nations’ Universal Declaration of groups, the original proposed formulation of Human Rights16 of 1948 there was hesitation in the guarantee in section 15 of “equality before endorsing it because it contained rights to social the law and equal protection of the law” was en- security, employment, education, and other eco- larged to equality “before and under the law and . . . the right to equal protection and equal bene- nomic rights — all things that would cost mon- 19 ey and so were, in the eyes of legislators, matters fit of the law . . .” The addition of various prep-
54 Volume 16, Number 2, 2007 ositions and nouns meant that the Charter did Admittedly, the Court has shown some re- give the courts a potential power to pronounce luctance in recent times to order the expendi- on the adequacy of entitlements to social pro- ture of money by legislatures to ensure “equal grams for certain deprived groups. What rem- benefit” of the law, or for other purposes.25 But I edy they might give was not prescribed. I think understand these cases to have turned on other we assumed that courts would, in the exercise principles and do not represent an abandonment of their powers under section 52 of the Consti- of the Court’s willingness to order the provision tution Act, 1982,20 at most pronounce statutes of specific services and hence the expenditure invalid if found to be discriminatory because of of public funds. a lack of equality in the benefits they provided, and leave it for Parliament or the legislatures to Not only have the courts amended legisla- re-enact them in a form which, while providing tion for the purpose of providing services and for equal benefits, would correspond to the leg- spending funds not voted upon by legislatures, islative bodies’ priorities and spending capacity. but they have also amended laws to regulate Or, if the courts resorted to their powers under matters which legislative bodies have preferred section 24,21 they would not think it “appropri- to leave unregulated. A salient example may be ate and just in the circumstances” to go beyond found in the Supreme Court’s decision in Vr- 26 a declaration that the offending action or inac- iend v. Alberta. There a homosexual teacher at tion by government is invalid. Again, we as- a private college in Alberta was dismissed be- sumed that courts would leave it to Parliament cause of his sexual orientation. The provincial and the legislatures to correct unconstitutional law prohibiting discriminatory employment statutes to the extent they thought possible and practices did not include sexual orientation as a appropriate. prohibited ground. The legislative history made clear that this had been a deliberate omission It didn’t work out that way. In an early Char- by the government and legislature. It was ulti- ter case, Schachter v. Canada,22 the Supreme mately held by the Supreme Court that the fail- Court held that where a statute gives benefits to ure of the legislature to prohibit discrimination certain persons but not to others similarly situ- on grounds of sexual orientation was itself dis- ated, it was open to the courts to find the law criminatory, and the Court read into the legis- not only invalid as it stood under section 52, but lation the necessary prohibition which the leg- also to “read in” to the statute the provision of islature had chosen not to include. The Supreme similar benefits to the deprived class of persons. Court simply could not contemplate the legisla- In effect, the Court said it could legislate for ture being neutral on this issue. Not only must Parliament rather than simply declare that the Alberta’s legislature refrain from evil, it must law makes an invalid distinction, suspend the also do good. One anomalous consequence of declaration, and then let Parliament take such this is that, although we understood the Charter remedial measures as it thought consistent with to be for the control of the state and not of in- the parameters identified by the judiciary.23 In dividuals, the Court here used it to enact a pro- Eldridge v. British Columbia,24 however, it was hibition on the actions of all private employers not the validity of a statute that was at issue, in Alberta.27 but rather the adequacy of administrative ac- tion under section 15 of the Charter. The Court Those who drafted and agreed to the terms responded with a subsection 24(1) remedy to of the Charter, be it federal or provincial politi- require that medical services provided under a cians or officials, had another major surprise in 28 provincial medical insurance program include Re B.C. Motor Vehicle Act where the Supreme 29 sign language interpretation for deaf patients. Court interpreted section 7 to be a mandate Again, this was a problem of ensuring “equal for the courts to ignore laws which, though benefit” of the medical insurance law and it was otherwise constitutional, they consider unjust. the Court which decided what services should That section, of course, guarantees the right to be provided at public expense. “life, liberty and security of the person and the right not to be deprived thereof except in the
Constitutional Forum constitutionnel 55 accordance with the principles of fundamental they didn’t approve of the policy implemented justice.” In lieu of “principles of fundamental by that statute. justice,” earlier drafts had used the term “due process.” The record is abundantly clear that One would, I think, have to go back to Lord 31 no one wanted that term used in the Charter Coke’s pronouncement in Dr. Bonham’s Case because it had been interpreted, in the United in the seventeenth century to find in English States, to include what is called “substantive” or Canadian law such a judicial claim to exer- due process: that is, it was interpreted to al- cise legislative power, and Coke’s notion, never low the courts to second-guess legislatures by widely received (certainly not in Canada), barely 32 striking down a law, even if it were otherwise survived that century. In 1985, however, only constitutionally unobjectionable, because it em- three years after the adoption of theCharter “by braced a bad policy of which the courts did not the elected representatives of the people of Can- approve. ada” (as the Supreme Court piously reminded us in Motor Vehicle33), the Court found those At one time, socially progressive legisla- representatives to have intended the adoption tion had been struck down by the U.S. Supreme of the test of substantive due process by their Court as contrary to substantive due process. use of the phrase “principles of fundamental The Canadian framers did not want such a re- justice.” While I believe in the “living tree doc- sult here. We therefore employed the words trine”34 by which the meaning of the Constitu- “principles of fundamental justice” which were tion may change over time with the changing found in the Canadian Bill of Rights and which society which it must serve, just three years had been interpreted by the Supreme Court in growth of that living tree could hardly produce 1972 to refer to procedural requirements only.30 such fecundity! Had our society evolved so pro- Admittedly the context was different in that foundly between 1982 and 1985 that we had al- statute, and had we enjoyed the luxury of more ready come, and for the first time, to accept the time we probably would have employed more supremacy of the courts in determining, not just precise language. In fact, we did consider the the constitutionality, but the policy of statutes? suggested alternative of “natural justice” at that time, but rejected that traditional term because While the impact of this holding has so far its use was still restricted to judicial and quasi- been somewhat limited, we have recently been judicial proceedings. If there were an ambiguity reminded of its potential use as authority for in the term “principles of fundamental justice,” the courts actively to manage social policy. In 35 it would not have taken much effort on the part the case of Chaouilli v. Quebec, decided by the of the Court, which, we are frequently told, is Supreme Court of Canada in 2005, a majority of always in pursuit of “purposive” interpretations the panel held that the policy of a provincial law of our constitutional instruments, to learn from to prohibit the purchase or sale of private medi- the public record what was the purpose of the cal insurance was wrong, and therefore uncon- elected representatives who conferred on courts stitutional. Three of the majority of four judges the mandate to apply the Charter, but who also based their decision on “the principles of fun- determined the language to which the judiciary damental justice” in section 7 of the Charter. All was expected to give its intended effect. If, as we four of that majority also invoked section 1 of are told by the Court, this phrase gives the ju- the Quebec Charter of Human Rights and Free- 36 diciary the mandate to apply the “basic tenets doms, which is believed to have magic quali- of our legal system” in determining whether a ties similar to those of section 7 of the Char- law complies with “fundamental justice” in a ter. Thus, the Court settled a long and highly substantive sense, a superficial examination of contested issue in Canadian public policy as to that legal system would have revealed that it has whether it is fair and just to deny certain fortu- never been part of our constitutional or com- nate people, who can afford private insurance mon law heritage that judges be free to refuse and who do not suffer from disabilities that to apply plainly worded statutes not otherwise would make them uninsurable, the right to have in conflict with the Constitution, just because the faster and arguably better care that would
56 Volume 16, Number 2, 2007 be provided through private insurance. So far, 1,200 written representations were received by through many elections and changes of parties the Committee. Among those appearing and in power, elected representatives have not been making forceful presentations were several rep- prepared to allow this, mainly on the basis that resentatives of Aboriginal peoples. They pressed it is contrary to egalitarian principles (arguably for constitutional recognition and protection of even against section 15 of the Charter), but also the type effected in section 35. Their propos- because it would have the effect of weakening als received particularly strong support from the public insurance system by drawing away members of the federal New Democratic Party resources to give better and faster service to the (NDP) caucus. Prime Minister Trudeau, given more fortunate privately insured. Is it right that the many forces of opposition to the federal in spite of all this, the courts are in a better po- proposals then abroad in the land (including the sition than elected governments to determine governments of eight provinces), was anxious to what is a just distribution of medical services? have the support in Parliament of the NDP to complete patriation. I and some other federal I will not belabour the point or get further advisers were closeted from time to time with into the minutiae of Charter interpretation. Ed Broadbent, the then NDP leader, and his ad- These are some of the most important unfore- visers to try to work out a suitable text. The one seen and I think unforeseeable of its interpreta- agreed upon was similar to the text which was tions. finally adopted, and seemed to me to be a very strong endorsement of, and protection for, Ab- Aboriginal Rights original rights. Indeed, I had to advise federal ministers that, if they were to entrench in the The other change of great importance- ef Constitution something along the lines being fected by the Constitution Act, 1982 was the ad- discussed, we could not give much meaningful dition of section 35.37 As ultimately enacted it advice as to how it would be interpreted by the includes the following subsections: courts. I will return in a moment to the causes of our uncertainty. 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of The text, essentially as mentioned above in Canada are hereby recognized and af- subsections 35(1) and (2) (the word “existing” firmed. was not then included in subsection 35(1)), was (2) In this Act, “aboriginal peoples of approved by the Committee on 13 February Canada” includes the Indian, Inuit 1981 and was transmitted to Parliament where and Métis peoples of Canada. it was approved by both Houses without change on 23-24 April 1981. There then followed a (3) For greater certainty, in subsection (1) hiatus during which we argued before the Su- “treaty rights” includes rights that now preme Court in the hearing of the Patriation exist by way of land claims agreements Reference,38 and awaited the results. When the or may be so acquired. Court pronounced, in effect, that we had not There was no such provision in the draft achieved “a sufficient measure” of provincial resolution tabled by the federal government in support, a further First Ministers Conference Parliament in October 1980 as its constitution- was held in early November 1981. There the Ac- al proposal. I can recall no discussion of this cord was reached whereby nine premiers (all within the government prior to that time, nor but Quebec’s) and the prime minister agreed on during the previous twelve years of intermittent a text of constitutional changes. As a result of federal-provincial discussions on constitutional the objections, at that time, of several premiers reform. However, once a text of patriation leg- to the inclusion of section 35, it was not includ- islation was up for discussion in the Joint Par- ed as part of the Accord. But once the Accord liamentary Committee, representations were was made public, this omission attracted much received from many quarters: 104 groups and criticism, and not just from Aboriginal peoples. individuals appeared as witnesses and some Eventually, the reluctant premiers agreed to its
Constitutional Forum constitutionnel 57 restoration, mainly on condition of the addition v. British Columbia,40 the leading 1997 Su- of the word “existing” to subsection 35(1). As I preme Court decision under section 35. recall it, subsection (3) was added at the urging There were, perhaps, at least two surprises of Aboriginal leaders to ensure that recently in that decision. One was that, as Aboriginal negotiated and future land claims agreement title is not based on the practices, customs, would have the same entrenched protection as and traditions of the claimants (as are other the traditional treaties referred to in subsection Aboriginal rights), title is not confined to 35(1). With these changes, and some others, the traditional uses of the land. Thus, Aborigi- package was endorsed by Parliament and sent nal title includes mineral rights even if their to Westminster where it was enacted as the ancestors never exploited them.41 (This I Constitution Act, 1982. found surprising as, in my understanding, the claim to Aboriginal title depended on I return then to my focus on the foreseen traditional occupation of the land and this and unforeseen. Speaking, I think, for many occupation was essentially surface occupa- participants in the framing process, I have to tion.) Another doubtful matter, clarified in say that we considered the outcome of section that case, was the weight to be given to evi- 35 to be largely unforeseeable. This was one dence proffered by claimants in the form of area where we knew we didn’t know. For this oral history. reason I would characterise its interpretation to date as unforeseen. This is not to denigrate 2. As I say, while we knew the likely parameters the generally good job which I think the courts of Aboriginal title, we were quite uncertain have done in putting meat on these bare bones. as to the identification of other forms of Ab- To appreciate the value of what has been done, original rights. Indeed, the Supreme Court I need to go back to the sources of our uncer- has developed criteria for this purpose. Such tainty — to show just what a difficult task was a right must be based on a practice or cus- left to the courts. Following are major areas of tom of the claimants’ ancestors, employed uncertainty apparent to us in 1982. before the time of first contact with Europe- ans. It must have involved a use of land, but 1. What rights would be protected? We were not necessarily land for which the claimants fairly certain as to what “treaty rights” and could assert Aboriginal title. The practice or rights under “land claims agreements” custom must be shown to be distinctive of were, as these are, by definition, reduced to their culture, one which makes the culture writing. Even there, the language of some what it is.42 Thus, some important markers of the old treaties is full of ambiguities and have been established for defining the scope generalities. But what did “existing aborigi- of the guarantee of “aboriginal rights” other nal rights” embrace? In 1982, we thought than Aboriginal title, matters heretofore not we understood Aboriginal title to land, given much attention in the jurisprudence. one form of Aboriginal rights. Indeed, by this time the dissenting reasons of Justices 3. We were not completely certain what the Hall, Spence, and Laskin in Calder v. Brit- legal effect of the “recognition” and “affir- ish Columbia39 had been accepted, at least mation” of Aboriginal rights would be since in Ottawa, as the correct view of Aboriginal this section was not part of the Charter, sec- title. This was a view of title based on oc- tion 1 of which “guarantees”43 the rights set cupancy and use by an identifiable group of out in it. But the courts soon confirmed that, Indians prior to the Crown asserting sov- provided such rights were still “existing” as ereignty over the lands. So established, title of 17 April 1982, they could no longer be entitled a group to exclusive continuing oc- extinguished or severely impaired by gov- cupancy unless it had been extinguished by ernmental action. This stands in contrast to the agreement of the relevant group, or by a the situation before 1982 when Aboriginal deliberate act of the competent government. land rights, at least, could be extinguished This view was confirmed by Delgamuukw by federal executive or legislative acts as
58 Volume 16, Number 2, 2007 long as a clear intention was shown to ef- as to who is a “Métis,” a group designated fect such extinguishment. Of course, both in section 35 as having specially guaran- before and after 1982, such rights could be teed rights. In various contexts in the past, extinguished with the agreement of the Ab- governments had been content for persons original community: this was normally a of mixed Aboriginal and European blood key element of the treaties, and was usually to identify themselves as either Indian or an element in lands claims agreements. Métis, usually dependent on which com- munity accepted them as members. The Su- 4. Also, because section 35 is not part of the preme Court tackled this difficult question Charter, the rights entrenched in it are not in R. v. Powley.50 There a group sought to subject to the provisions of section 1, which establish a site-specific Aboriginal hunting permits “reasonable limits” to Charter rights right. The Court recognized them as Métis. if such limits are “prescribed by law [and] The indicia adopted by the Court were that can be demonstrably justified in a free and the claimants be of mixed ancestry, live in democratic society.” Nevertheless the courts an identifiable Métis community, and have have recognized, in effect, that Aboriginal developed their own way of life distinct rights can be similarly limited if there is a from both Indians and Europeans, with valid legislative object for the limitation, if practices that were site-specific and with a it involves only as much infringement as is sufficient degree of continuity. Such groups necessary, and if in the nature of an expro- would have commenced to exist (obvious- priation it provides for compensation and is ly) after the arrival of Europeans but must the subject of consultation with the rights- have “evolved and flourished prior to the holder group. Further, such control must be entrenchment of European control.” The consistent with the federal Crown’s fiducia- Court declined to go further in specifying 44 ry duties to the holders of the rights. An criteria, and no doubt this is an area open obvious example of permissible limits is a to much more interpretation depending conservation law applied to the exercise of on the particular claimant groups. Never- 45 Aboriginal fishing rights. theless, the Court has provided important 5. In 1982, we could only speculate as to wheth- guidance as to the interpretation of a word er section 35 would guarantee an Aboriginal we could not define in 1982. right of self-government, a right which had These important strides in the jurispru- been often asserted but not clearly recog- dence since 1982 demonstrate what a bold ini- 46 nized. In Delgamuukw the Supreme Court tiative it was for governments to endorse section drew back from deciding that issue, it being 35 because so much of the probable effect of this thought unnecessary to dispose of the case. section was unknown. This was, in my view, one As far as I am aware, it has otherwise been of the most important aspects of the 1982 Act 47 given only limited recognition. because it gave formal constitutional recogni- 6. We also had to admit in 1982 that we could tion and protection to many Aboriginal rights, not provide any meaningful definition of often asserted but seldom recognized without the term “Métis” as used in section 35. Sec- qualification. While governments were amply 48 familiar with the legal means and consequences tion 91(24) of the Constitution Act, 1867 assigns to Parliament jurisdiction over “In- of patriation, and generally understood the na- dians and lands reserved for the Indians.” ture and scope of the rights being entrenched in An elaborate legislative scheme identifies the Charter (most of these were already recog- who are “Indians” for purposes of the ex- nized in ordinary laws in one form or another), ercise of this power. The Supreme Court as- section 35 launched a novel exercise in the defi- sisted in the definition of the federal power nition and protection of Aboriginal rights of years ago49 by holding that Inuit are “Indi- which Euro-Canadian society, at least, had little ans” — which may have been a surprise to understanding or acceptance. The fundamental both groups! But we had no legal guideposts purpose of section 35 was well stated by Chief
Constitutional Forum constitutionnel 59 Justice Lamer, in Van der Peet51: sus on the fact of patriation and the meaning of the rights it has entrenched. More specifically, what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in Notes distinctive societies, with their own practices, traditions and cultures, is acknowledged and * Hon. Barry L. Strayer, Q.C., formerly Judge of the reconciled with the sovereignty of the Crown. Federal Court of Appeal and Chief Justice of the The substantive rights which fall within the Court Martial Appeal Court of Canada. provision must be defined in light of this pur- This article is based on a presentation delivered pose; the aboriginal rights recognised and af- in Regina on 24 May 2007, at a “Living Tree” firmed by s. 35(1) must be directed towards the conference on the 25th anniversary of the Consti- reconciliation of the preexistence of aboriginal tution Act, 1982, organised by the Saskatchewan societies with the sovereignty of the Crown. Institute of Public Policy, University of Regina.
The answer to the question of where this 1 Pierre Elliot Trudeau, A Canadian Charter of process would take Canada was undoubtedly Human Rights (Position Paper) (Ottawa: Queen’s the biggest unforeseeable we were to face in Printer, 1968). 1982. 2 Being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11. 3 Part I of the Constitution Act, 1982 supra note 2 Conclusion [Charter]. 4 Paraphrase of Secretary of Defence Donald H. By way of summary then of what was fore- Rumsfeld, News Transcript, United States Office seen and unforeseen by the framers of the Con- of the Assistant Secretary of Defence (Public Af- stitution Act, 1982, I would first say that we fairs), 12 February, 2002. The actual quotation is correctly foresaw a patriated Constitution over as follows: “[T]here are known knowns; there are which Canada would have complete legal con- things we know we know. We also know there are trol for purposes of amendment in the future. known unknowns; that is to say we know there We correctly foresaw an effective Charter that are some things we do not know. But there are also unknown unknowns — the ones we don’t would legally enhance the rights of Canadians, know we don’t know.” establish a human rights culture in Canada, and 5 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3, reinforce the growing pluralism of our society. reprinted in R.S.C. 1985, App. II , No. 5. We correctly saw important enhancements in, 6 Commonwealth of Australia Constitution Act, and new definitions of, Aboriginal rights which 1900 (U.K.) 63&64 Vict., c. 12, s. 128. would contribute a new dimension to justice in 7 (U.K.), 22 & 23 Geo. V, c. 4, s. 2. our society. 8 Re: Resolution to Amend the Constitution [1981] 1 S.C.R. 753 (CanLII) [Patriation Reference]. Matters which we did not foresee included 9 Reference re Amendment of the Canadian Consti- a continuing political controversy over patria- tution [1982] 2 S.C.R. 793. tion, and interpretations of the Charter which 10 Supra note 8 at 886. entailed greater judicial incursions into the leg- 11 “Close to one third of Canadians unsure if new islative domain than were anticipated by the constitution good” Ottawa Citizen (19 June 1982) elected representatives of the people who agreed 4. to the text of that document. As I have said, the 12 Kirk Makin, “Two Thirds Back Electing Judges: framers could not foresee either the exact scope Twenty-Five Years Later, poll show strong sup- port for Charter” Globe & Mail (9 April 2007) or effect of guaranteeing Aboriginal rights, but A5. would not generally be surprised by the out- 13 (3 June 1987), online: The Canadian Encyclo- come. pedia
60 Volume 16, Number 2, 2007
Constitutional Forum constitutionnel 61
L’exil intérieur des Québécois dans le Canada de la Charte
Guy Laforest*
Introduction Je vais commencer cet article par une note J’utilise ce ton pour montrer un certain sens personnelle. Il y a vingt-cinq ans, au temps de des proportions dans les analyses que je vais l’entrée en vigueur de la Charte canadienne des développer sur l’exil intérieur des Québécois dans droits et libertés1, je vivais à Montréal et j’étudiais le Canada de la Charte. Comme pas mal d’autres à l’Université McGill. Parmi mes professeurs, il y personnes au Québec, sur les plans de l’identité avait deux grands intellectuels qui étaient aussi politique et de l’appartenance, je ne suis pas un 4 deux grands idéalistes, Charles Taylor et James citoyen heureux dans le Canada de la Charte . Tully2. J’ai beaucoup appris d’eux et avec le temps, Au-delà de mes sentiments personnels, je crois ils sont devenus des amis. J’avais d’autres profes- que cela s’explique par le fait que le Québec n’est seurs qui m’ont influencé, peut-être moins directe- pas intégré correctement dans le nouveau Canada ment, mais tout aussi durablement, notamment qui a surgi depuis la réforme constitutionnelle de les Blema Steinberg, Daniel Latouche, James Mal- 1982. Paradoxalement, cette réforme a vu le jour, lory et Harold Waller. Leur approche était teintée pour une bonne part, à cause du dynamisme et de réalisme, et elle contrebalançait à merveille des pressions exercées par le Québec sur le Cana- celle que je trouvais chez Taylor et Tully. En phi- da dans la foulée de la Révolution tranquille. Au losophie, l’approche réaliste est celle du libéral- lieu d’améliorer la situation, la réforme de 1982 isme sans illusions que l’on trouve chez les Judith l’a aggravée. Telle est la thèse que je promouvrai Shklar, Raymond Aron, Isaiah Berlin et Karl Pop- dans cet article. L’expression « exil intérieur » per, selon laquelle en politique, il faut d’abord et décrit très bien le fondement de ma pensée. Car avant tout éviter le pire. Il faut entendre par là la un exilé de l’intérieur, c’est quelqu’un qui se sent cruauté, l’effroi, la terreur, la violence, tout ce qui inconfortable, qui vit comme un étranger au sein peut broyer la personne humaine, l’atteindre dans de son propre pays. sa dignité et dans son intimité. A ce titre je part- age le jugement d’Irvin Studin qui écrivait récem- Pierre Trudeau, l’exil des Québécois ment que le Canada est un formidable succès à l’échelle de l’humanité, l’un des pays parmi les et la Charte 3 plus « pacifiques, justes et civilisés » . Un pays où, Mais c’est encore une fois la tendance tou- pour ajouter ma propre voix, les forts comme les jours accentuée, c’est le poids dans la balance faibles peuvent dormir tranquilles dans un milieu du côté du provincialisme aux dépens d’une social humain, décent, confortable, sans crain- institution fédérale, ou d’une législation, qui, dre le pire. Tout cela compte pour beaucoup dans jusqu’à présent, donnait aux Canadiens un l’histoire de l’humanité. sens d’appartenance nationale, un peu comme la Charte des droits et libertés était impor-
Constitutional Forum constitutionnel 63 tante pour l’unité canadienne, un peu comme an attack on provincialism. It was a way of try- le rapatriement de la Constitution, un peu ing to get Canadians to think of themselves as comme le drapeau canadien. Tout cela, c’est possessors of a common body of rights inde- important en ce sens que ça fait comprendre pendent of geographical location, which would aux Canadiens qu’ils partagent avec TOUS les constitute a lens through which they would Canadiens, de TOUT le pays, un MÊME en- then view what all governments were doing. semble de valeurs fondamentales5. So it was really a de-provincializing strategy, primarily aimed at Quebec nationalism, but La question de l’exil intérieur des Québé- also at the general centrifugal pressures that cois est rendue immensément plus complexe were developing across the federal system10. si l’on y ajoute le rôle prépondérant qu’y a joué Pierre Elliott Trudeau, sans conteste l’une des Dans son livre de 2005, André Burelle ex- plus grandes personnalités politiques du Qué- plique lucidement les péripéties politiques qui bec et du Canada au XXe siècle. Sur les plans ont amené M. Trudeau en 1980 à rompre le dé- de l’appartenance et de l’identité, les Québécois licat équilibre qui prévalait jusqu’alors dans son ont été en quelque sorte mis en exil par l’un des esprit entre le personnalisme communautaire leurs. Le fédéralisme a occupé une place impor- de l’époque citélibriste - la pensée des Jacques tante dans la vie de M. Trudeau. Sauf qu’un exa- Maritain et Emmanuel Mounier - réconciliable men de ses actions et de ses écrits dans les années avec le fédéralisme de 1867 et une certaine ac- quatre-vingt, replacé sur l’horizon d’ensemble ceptation de la différence nationale québécoise, de sa vie politico-intellectuelle, révèle en lui un et un libéralisme ultra-individualiste et symé- nationaliste et un souverainiste canadien bien trique faisant l’affaire du « nation-building » 11 plus qu’un fédéraliste. C’est très clairement ce canadien . Dans l’esprit de Burelle, le fédéral- qui ressort du très important livre qu’André isme « one nation » de la Loi constitutionnelle 12 Burelle, philosophe et ancien rédacteur des dis- de 1982 s’appuie sur l’unitarisme républicain cours de M. Trudeau, vient de consacrer à son et part des prémisses d’un libéralisme individ- œuvre6. J’y reviendrai dans un moment. Au ualiste et anti-communautaire. Selon lui, cela soir de sa carrière, M. Trudeau rêvait d’établir s’opérationnalise de la manière suivante : une fois pour toutes la souveraineté de la nation a) Tous les individus y sont fondus en une canadienne et celle du gouvernement central. seule nation civique qui délègue au Par- Dans le débat sur l’Accord du lac Meech7, il se lement fédéral la totalité de sa souveraineté demanda souvent « comment peut-on rendre nationale; un pays plus fort en affaiblissant le seul gouver- nement capable d’exprimer le point de vue de b) Investi de cette souveraineté, le Parlement tous les Canadiens »8. Plutôt que de chercher à central confie aux provinces les pouvoirs trouver dans le fédéralisme et ses institutions un fonctionnellement mieux exercés par équilibre entre un projet national canadien et elles13. un projet national québécois, il résolut après le référendum de 1980 à recourir au nationalisme Quelle sorte de fédéralisme découle d’une canadien pour changer le pays et l’emporter telle logique? Selon Burelle, c’est un fédéralisme définitivement contre les souverainistes québé- qui ne respecte plus la différence québécoise, qui cois9. La Charte fut l’instrument d’un tel des- fait fi du principe de non-subordination entre sein, comme le politologue Alan Cairns l’a rap- deux ordres de gouvernement souverains dans pelé dans un entretien avec l’historien Robert leurs compétences respectives, qui s’éloigne au- Bothwell : trement dit de ce que les fondateurs de la fédéra- tion canadienne avaient voulu faire en 1867. The prime one, the obvious one, is what the Selon Burelle, l’esprit de 1982 bafoue celui de Charter appears to be on its face, a way of pro- 1867 par l’opération entrecroisée des principes tecting citizen rights against the state. From suivants : Trudeau’s perspective, however, the much more important goal was the attempt to gener- a) la pratique d’une subsidiarité dévoyée i.e. ate a national identity, and this really meant d’une dévolution de souveraineté descen-
64 Volume 16, Number 2, 2007 dante (top down) qui part de l’État central; le transfert entre les mains des tribunaux du pouvoir de mise en œuvre de ces droits et lib- b) l’existence d’un gouvernement senior « na- ertés et le développement de normes nation- tional » et de gouvernements juniors « pro- ales positives et négatives qui en découleraient vinciaux »; joueraient dans un sens centralisateur16. c) l’attribution à Ottawa d’un droit d’ingérence Dans la mesure où la protection des droits par pour garantir « l’intérêt national » dans les un instrument constitutionnel est un dispositif champs de compétence provinciale; antimajoritaire, elle vient limiter l’autonomie politique des minorités qui disposent d’une ou d) l’identité de droit et de traitement des indi- de plusieurs entités territoriales. La minorité vidus et des provinces vu leur fusion au sein qui contrôle une telle entité voit son pouvoir d’une seule et même nation républicaine14. politique limité au profit de ses propres mi- norités et de ses propres membres… La ma- Dans l’ensemble, l’interprétation de Burelle jorité au niveau national peut alors céder à la me semble assez juste. Il avait dit cela autrement tentation d’utiliser son pouvoir pour imposer dans son livre de 1994, en parlant d’un gouver- à sa minorité le respect de garanties excessives nement par les juges via une « Charte nationale » au profit de « la minorité dans la minorité ». On a l’impression, parfois, que le groupe ma- et d’un gouvernement par le « peuple canadien » joritaire au niveau national défend ses propres permettant à Ottawa de contourner le partage 15 intérêts sous le prétexte des droits de la per- des compétences. J’y apporterais toutefois une sonne et des droits des minorités17. nuance : il faut faire une distinction entre la vi- sion de la Charte promue par M. Trudeau lui- même et le contenu réel de celle-ci. Je pense que Pour mettre fin à l’exil Burelle comprend bien Pierre Trudeau. Toute- fois, comme la juge-en-chef de la Cour suprême, La situation politique est en flux au Canada et Beverley McLachlin, le fait bien ressortir dans au Québec à l’automne 2007, avec la présence de un discours que je citerai plus loin dans cet ar- deux gouvernements minoritaires, et tout porte ticle, les catégories de la Charte ne sont pas re- à croire qu’elle continuera de l’être au cours des streintes aux seuls droits individuels. Il y a de la prochains mois. C’est ce que j’appelle une équa- place dans la Charte pour le patrimoine multi- tion du deuxième degré à plusieurs inconnues, in- culturel des Canadiens et pour les droits collec- stallant du brouillard dans la tête de la plupart des tifs des peuples autochtones. Toutefois, il n’y en experts. Il faut par ailleurs clairement reconnaître a pas pour l’idée de la différence québécoise et plusieurs développements positifs des dernières pour le principe que devraient en découler des années : l’entente asymétrique Canada-Québec sur la santé signée en 2004 par les gouvernements conséquences juridiques. Avant d’explorer dans 18 la prochaine section des moyens qui pourraient Martin et Charest , la formulation de la doctrine mettre fin à l’exil intérieur des Québécois dans du fédéralisme d’ouverture par Stephen Harp- le Canada de la Charte, je vais parachever celle- er lors de la campagne électorale qui a mené à ci avec deux analyses de l’esprit de 1982 que l’on l’élection d’un gouvernement conservateur à Ot- doit à Eugénie Brouillet et José Woehrling, deux tawa en janvier 2006, l’entente Harper-Charest de des meilleurs professeurs de droit public dans le mai 2006 acceptant le principe d’un rôle interna- Québec d’aujourd’hui : tional particulier pour le Québec et intégrant un représentant du gouvernement du Québec dans la c’est précisément en raison du potentiel inté- délégation canadienne à l’Unesco19, la résolution grateur de la charte canadienne que le gou- de la Chambre des communes de novembre 2006 vernement fédéral en a fait la pierre angulaire stipulant que les Québécois forment une nation de la réforme constitutionnelle de 1982. Sur le au sein d’un Canada uni - malgré les ambiguïtés plan politique, la reconnaissance de droits et qui perdurent entre les versions française et an- libertés supralégislatifs à chacun des citoyens glaise du texte20, enfin la prise en compte du prob- canadiens constituerait le fondement de leur lème du déséquilibre fiscal dans le budget fédéral identité commune et renforcerait ainsi l’unité 21 de la nation canadienne. Sur le plan juridique, en février 2007 . Par ailleurs, il se pourrait que
Constitutional Forum constitutionnel 65 le gouvernement Harper bouge dans la direction manière de se définir dans un texte qui compte d’un certain encadrement du pouvoir fédéral de vraiment pour les Canadiens. Et ce texte, c’est la dépenser dans le discours du Trône prévu pour le Charte canadienne des droits et libertés. On pour- 16 octobre 200722. Dans ma perspective, il est in- rait ainsi ajouter la sous-section I.A à la Charte, contestable que ces développements contribuent reconnaissant que le Québec forme au Canada à atténuer le malaise, à changer le climat dans une société nationale distincte, stipulant aussi lequel opère notre vie politique. Ils ne réussissent que le gouvernement et l’Assemblée Nationale du cependant pas à prendre en compte le problème Québec ont l’obligation de protéger et promou- de la place du Québec dans l’architecture con- voir une telle société. C’était l’expression préférée stitutionnelle du Canada. Pour progresser dans par Claude Ryan et par André Laurendeau il y a cette direction, il faudra un jour amender la Loi quarante ans, au temps de la Commission royale constitutionnelle de 1982 et la Charte canadienne d’enquête sur le bilinguisme et le biculturalisme. des droits et libertés. Certains y devineront le fantôme de la clause de la société distincte au temps de l’Accord du lac L’article premier de la Charte stipule que les Meech. Ils ne s’y tromperont pas. Beaucoup de droits inclus dans le texte « ne peuvent être re- Québécois ont vu dans la réforme constitution- streints que par une règle de droit, dans des lim- nelle de 1982, non sans raisons sur la base de la ites qui soient raisonnables et dont la justifica- section précédente de ce texte, une tentative pour tion puisse se démontrer dans une société libre et créer une seule et grande nation canadienne sub- 23 démocratique » . Dans la mesure où, comme la sumant toutes les autres appartenances et en par- Cour suprême l’a d’ailleurs reconnu en en faisant ticulier celle découlant du nationalisme québécois le premier des piliers normatifs de notre édifice moderne. L’adoption de l’Accord du lac Meech au- constitutionnel dans le Renvoi sur la sécession rait corrigé le tir à cet égard. Un jour ou l’autre, du Québec, le fédéralisme est un principe struc- cette question va resurgir et elle fera partie de la turant de la communauté politique canadienne, doctrine constitutionnelle d’un parti politique l’article premier de la Charte devrait référer à une gouvernant le Québec. Il est intéressant de rap- « fédération libre et démocratique » plutôt qu’à peler, sur cette question, les propos de l’actuel chef une « société libre et démocratique ». Ce tout pe- du Parti libéral du Canada, M. Stéphane Dion, tit changement aurait deux effets majeurs : tout revenant alors qu’il était ministre dans le gouver- d’abord, il instruirait les juges de la nécessité de nement Chrétien en 1996 sur l’enjeu de la société prendre en compte le caractère névralgique du distincte et de sa reconnaissance : principe fédéral dans leur compréhension des règles juridiques de notre régime; ensuite, cela Quelle est l’essence de la disposition sur la aurait une valeur pédagogique, dans la mesure société distincte ? Cette disposition serait un où on inviterait les citoyens à mieux comprendre article d’interprétation, semblable à l’article 27 l’importance du fédéralisme dans l’identité poli- de la Charte des droits et libertés, qui recon- tique canadienne. En prime, comme conséquence, naît le multiculturalisme. Elle garantit que, dans les zones grises de la Constitution, dans les Québécois se sentiraient moins seuls à prendre les domaines où il faut interpréter les règles, au sérieux le fédéralisme dans la compréhension la Cour suprême tiendra compte du caractère du Canada! distinct du Québec dans des domaines comme la langue, la culture et le droit civil. Ce sera Le deuxième changement que j’ai en tête dé- une clarification utile, mais qui ne modifiera coule logiquement du débat qui a marqué la vie en rien le partage des pouvoirs prévu par la publique canadienne à l’automne 2006 à propos Constitution. Il ne s’agit pas d’une demande de de l’opportunité de reconnaître le fait national statut spécial ni de privilèges particuliers24. québécois. Lancé par Michael Ignatieff lors de la course à la direction du Parti libéral du Canada, Dès l’époque du régime britannique, à la fin le débat s’est achevé par la motion de reconnais- du XVIIIe siècle, on s’est refusé à appliquer la sance présentée par le Premier Ministre Harper politique d’assimilation et d’homogénéisation à la Chambre des Communes. Pour mettre fin à qui a dominé assez généralement la période de l’exil intérieur des Québécois, il faut placer leur la consolidation de l’État-nation moderne en Eu-
66 Volume 16, Number 2, 2007 rope. L’Acte de Québec de 1774 garantissait aux confronter ce monde tourmenté qui est le nôtre. nouveaux sujets d’origine française de sa Majesté Mais j’estime aussi que dans son portrait des des libertés religieuses et le maintien de leur droit droits et obligations qui découlent de son article civil25. Quand le Canada est devenu un Dominion 27 sur le patrimoine multiculturel des Canadiens, fédéral en 1867, un tel esprit d’ouverture, de recon- la Charte omet de préciser une réalité fondamen- naissance de la diversité et de respect des droits tale : ce patrimoine s’incarne au Canada dans les des minorités s’est exprimé dans l’attribution aux réseaux institutionnels de deux sociétés d’accueil, provinces (c’était clairement une revendication dont l’une au Québec décline sa vie sociale dans du Canada-Est, l’ancienne appellation du Québec, le respect du principe de la prépondérance de la mais pas uniquement de lui) de la juridiction sur langue française. Une telle précision m’apparaît la propriété et les droits civils, ainsi que dans les essentielle pour l’intégration à la fois juste et sta- dispositions protégeant les minorités religieuses. ble du Québec dans le Canada d’aujourd’hui. On peut d’ailleurs retrouver les origines histo- riques et juridiques du fédéralisme asymétrique Le Canada est une fédération libre et démocra- au Canada dans la formulation de l’article 94 de tique intégrant la société nationale distincte du la Loi constitutionnelle de 186726, lequel omet le Québec et un patrimoine multiculturel incarné Québec du périmètre de validité des pratiques dans deux sociétés d’accueil, dont l’une vit la mo- d’homogénéisation en matière de propriété et de dernité principalement en français. C’est ce qui droits civils entre le gouvernement fédéral et les manque à la Charte canadienne des droits et 27 provinces de common law . Cette originalité ca- libertés, si je comprends bien la situation, pour nadienne dans l’histoire de l’Etat-nation moderne aller au-delà de l’aliénation politique des Québé- s’est notamment exprimée en 1982 dans la rédac- cois. De telles transformations ne mettraient pas tion de l’article 27 de la Charte, lequel stipule que fin pour toujours aux conflits politiques dans le « Toute interprétation de la présente charte doit régime fédéral canadien, y compris entre le Qué- concorder avec l’objectif de promouvoir le main- bec et ses partenaires. Celles et ceux qui veulent tien et la valorisation du patrimoine multiculturel mettre fin une fois pour toutes aux « chicanes des Canadiens ». Le troisième changement que politico-constitutionnelles » négligent le fait que j’estime nécessaire pour mettre un terme à l’exil la vie politique sera toujours affaire de dialogues intérieur des Québécois dans le Canada de la et de débats pouvant déboucher sur des affronte- Charte porte sur cet article. ments. Toutefois, ces changements auraient pour Si le débat sur la nation québécoise a soulevé effet de guérir une blessure et de redonner confi- pas mal d’intérêt dans les médias aussi bien anglo- ance dans le droit et dans les institutions cana- phones que francophones du pays en 2006, on peut diennes. Par ailleurs, l’angle d’analyse choisi dans en dire autant, dans le Québec de l’automne 2007, cet article est bien loin d’épuiser la totalité du réel, pour les travaux de la Commission de consultation je l’admets bien volontiers. Comme les Catalans et sur les pratiques d’accommodement reliées aux comme plusieurs États fédérés dans le monde, les différences culturelles (Commission co-dirigée Québécois pourraient faire preuve aussi d’audace par Gérard Bouchard et Charles Taylor). Bien que et d’imagination en se dotant, d’une manière au- l’on ne puisse préjuger de l’orientation générale tonome, d’une constitution interne renforçant 29 du rapport, le document préliminaire de consul- l’épine dorsale des institutions de leur société. tation publié par la Commission laisse clairement Enfin, des Québécois plus confiants dans leur entendre que celle-ci a choisi de donner une in- avenir et mieux intégrés devraient se montrer terprétation large à son mandat, acceptant donc plus ouverts aux propres désirs de changement de se pencher sur la question des rapports entre des autres Canadiens, lesquels sont certainement majorité et minorités28. Le Canada et le Québec aussi légitimes que les leurs. Des Québécois qui sont des terres d’immigration. Cette histoire s’est ne seraient plus des exilés de l’intérieur devraient accélérée dans la deuxième moitié du vingtième être capables de proclamer, à leur manière, leur siècle et cela ne va pas changer. J’estime que ce allégeance envers le Canada, et de s’engager dans phénomène social est un bien et que cela honore des projets communs pour le XXIe siècle. tous les gens qui vivent au Canada et qui ont à
Constitutional Forum constitutionnel 67 Conclusion de l’école idéaliste canadienne, de Charles Taylor à James Tully, en passant par Will Kymlicka, John Dans le contexte de la commémoration du Ralston Saul et Michael Ignatieff. La juge-en-chef 25e anniversaire de l’adoption de la Charte ca- de la Cour suprême du Canada, Beverley Mclach- nadienne des droits et libertés, je chercherai une lin, s’inscrivait dans cette tradition dans un dis- dernière fois à faire comprendre cette notion cours prononcé le 17 avril 2002, à l’occasion du 20e d’exil intérieur des Québécois en rappelant un anniversaire de l’entrée en vigueur de la Charte : autre événement ramené à notre mémoire en 2007, le célèbre cri du général Charles de Gaulle Nous avons une Charte qui reflète nos val- au balcon de l’hôtel-de-ville de Montréal en juil- eurs les plus fondamentales et nous dit qui nous sommes comme peuple et ce à quoi nous let 1967 « Vive le Québec libre! ». Il y a lieu d’être tenons. Nous avons une Charte qui suscite un peu nostalgique lorsque l’on se remémore l’admiration du monde entier. Enfin, fait plus l’année 1967. C’était l’ère du Centenaire de la important encore, nous avons une Charte que Confédération canadienne et celle de l’Exposition les Canadiens et les Canadiennes ont fait leur universelle de Montréal, une époque où les gens au cours des deux dernières décennies. La d’ici et d’ailleurs étaient invités à vivre d’espoir et Charte, c’est à nous. La Charte : c’est nous30. d’idéalisme à la hauteur du lyrisme de la « Terre des Hommes » de St-Exupéry. Il me semble que, si On peut comprendre alors que la Charte le discours du général de Gaulle a eu un tel reten- soit un motif de grande fierté au Canada, que tissement à Montréal en 1967, c’est qu’il répondait beaucoup de gens aient le goût de dire, comme à trois aspirations profondes de la société québé- la juge-en-chef en 2002, la Charte c’est à nous coise : il affirmait solennellement le droit à la dif- et la Charte c’est nous. Sauf que, vu du Qué- férence du Québec au Canada et en Amérique, il bec, cette Charte a été adoptée de façon anti- donnait fortement le goût d’une liberté politique démocratique sans notre consentement, au mé- qui peut prendre plusieurs formes dans la moder- pris de l’opposition de notre gouvernement et de nité, et enfin, il répondait à une soif d’universel, l’Assemblée Nationale, atteignant ainsi le peuple à un immense désir de reconnaissance. En 1967, du Québec lui-même pour reprendre les paroles 31 Charles de Gaulle a donné une dimension plané- de Claude Ryan à l’époque . L’autonomie lég- taire à la question du Québec. Quand on se met à islative du Québec en matières linguistiques a cerner la signification profonde de la Charte des été réduite, le principe fédéral a été affaibli dans droits et libertés pour le Canada, on s’aperçoit nos institutions et dans notre culture politique, qu’elle a conforté des aspirations semblables pour le droit à la différence du Québec n’a pas été in- le nationalisme majoritaire des Canadiens vivant tégré à la Charte. Plus précisément, le Canada à l’extérieur du Québec, de même que pour une de 1982 et de la Charte ne reconnaît explicite- minorité importante à l’intérieur du Québec. En ment ni la différence québécoise, ni le fait que proposant un équilibre intelligent entre des droits cette différence devrait entraîner des con- individuels, des droits collectifs et des droits pour séquences politiques et juridiques. L’idéalisme des personnes rattachées à des communautés mi- canadien, qui voit dans notre système politique noritaires, et en faisant cela de manière originale et surtout dans la Charte un exemple porteur par rapport au modèle du Bill of Rights améric- pour l’humanité dans son ensemble, me semble ain, la Charte a représenté une forte affirmation condamné à rester profondément inauthen- de la différence canadienne parmi les démocraties tique tant que l’on n’aura pas trouvé une façon libérales occidentales. Deuxièmement, la Charte juste et raisonnable de reconnaître la différence a contribué à parachever sur l’axe de la liberté québécoise, dans le droit aussi bien que dans les 32 politique l’indépendance complète de l’État-na- symboles . Sans pouvoir traiter ici de tous les tion canadien. Finalement, la Charte et son ray- aspects de cette question, il me semble évident onnement dans le monde ont nourri le désir de que les Québécois ont choisi de vivre leur quête reconnaissance des Canadiens, en faisant de leur d’identité et de liberté dans le Canada. Le Qué- pays l’avant-garde d’une civilisation de la dif- bec est dans le Canada pour y rester, sauf qu’il férence pour le XXIe siècle. C’est ce que l’on peut s’y reconnaît trop imparfaitement dans ses in- deviner en lisant la prose des meilleurs penseurs stitutions.
68 Volume 16, Number 2, 2007 Un grand esprit de McGill et du Québec, 1SEC861644>. Charles Taylor, soulignait naguère, dans une 8 Pierre-Elliott Trudeau, « Nous, le peuple du Can- réflexion sur le nationalisme québécois, qu’il ada », dans Donald Johnston, dir., Lac Meech : faut être impitoyable envers nos mythes essen- Trudeau parle, Montréal, Hurtubise HMH, 1988 tialistes. Le nationalisme majoritaire canadien à la p. 104. 9 J’ai beaucoup écrit sur ces questions. Voir notam- s’enferme dans un mythe essentialiste semblable ment Guy Laforest, Trudeau et la fin d’un rêve lorsqu’il s’imagine que l’on peut en ce pays oc- canadien, Québec, Septentrion, 1992; voir aussi culter la profonde aliénation politique, l’exil in- un chapitre intitulé « La vraie nature de la sou- térieur des Québécois. Un autre grand esprit de veraineté : réponse à mes critiques à propos de l’humanisme occidental, Paul Ricoeur, a écrit Trudeau et la fin d’un rêve canadien », dans Guy que la mémoire historique des peuples doit être Laforest, Pour la liberté d’une société distincte, juste et heureuse. L’exil intérieur des Québécois Québec, Presses de l’Université Laval, 2004 aux est un obstacle fondamental au développement pp. 219-36. d’une mémoire historique juste et heureuse au 10 Robert Bothwell, Canada and Quebec : One Canada. Country, Two Histories, Vancouver, UBC Press, 1995 à la p. 180. 11 Supra note 6 aux pp. 68-70. Notes 12 Constituant l’annexe B de la Loi de 1982 sur le Canada (R.-U.), 1982, c.11 (LLJCan). * Guy Laforest, Département de science politique, 13 Supra note 6 à la p. 459. Université Laval, Québec, Québec, G1K 7P4, 14 Ibid. à la p. 459. [email protected]. 15 André Burelle, Le mal canadien, Montréal, Fides, 1994 à la p. 64. 1 Charte canadienne des droits et libertés, partie 16 Eugénie Brouillet, La négation de la nation : I de la Loi constitutionelle de 1982, constituant l’identité culturelle québécoise et le fédéralisme l’annexe B de la Loi de 1982 sur le Canada (R.- canadien, Québec, Septentrion, 2005 à la p. 325. U.), 1982, c.11 (LLJCan). 17 José Woehrling, « La Charte canadienne des 2 On trouvera des analyses de la situation cana- droits et libertés et ses répercussions sur la vie dienne actuelle inspirées par les travaux de Tay- politique », dans Réjean Pelletier et Manon lor et Tully dans Alain-G. Gagnon, Au-delà de la Tremblay, dirs., Le parlementarisme canadien, nation unificatrice : plaidoyer pour le fédéralisme troisième édition revue et augmentée, Québec, multinational, Barcelone et Montréal, Insti- Presses de l’Université Laval, 2005 à la p. 115. tut d’estudis autonomics et Boréal, 2007; voir 18 (2004) Entente Canada-Québec sur la santé : aussi Guy Laforest, Pour la liberté d’une société Fédéralisme asymétrique qui respecte les compé- distincte, Québec, Presses de l’Université Laval, tences du Québec. 2004. 19 (2006) Accord Canada-Québec relatif à l'orga- 3 Irvin Studin, ed., What is a Canadian? Forty- nisation des Nations Unies pour l'éducation, la Three Thought-Provoking Responses, Toronto, science et la culture (UNESCO). McClelland & Stewart, 2006 à la p. 184. 20 Débats de la Chambre des communes, 086 (24 4 Ma thèse est aussi celle d’André Burelle, Le mal novembre 2006). canadien, Montréal, Fides, 1994; voir aussi Chris- 21 Guy Laforest et Eric Montigny, dirs., « Le fédéral- tian Dufour, Lettre aux souverainistes québécois isme exécutif : problèmes et actualité », dans et aux fédéralistes canadiens qui sont restés fidèles Réjean Pelletier et Manon Tremblay, Le par- au Québec, Montréal, Stanké, 2000. lementarisme canadien, troisième édition revue et 5 Pierre-Elliott Trudeau, « Où est notre patrio- augmentée, Québec, Presses de l’Université Laval, tisme national? » dans Donald Johnston, dir., 2005 aux pp. 364-68; voir aussi Keith Banting Lac Meech : Trudeau parle, Montréal, Hurtubise et al., Open Federalism : Interpretations, Signifi- HMH, 1988 à la p. 41. cance, Kingston, Institute of Intergovernmental 6 André Burelle, Pierre-Elliott Trudeau : Relations, Queen’s University, 2006 (voir en l’intellectuel et le politique, Montréal, Fides, 2005. particulier le chapitre signé par Alain Noël, « Il 7 (3 juin 1987) Consulté en ligne le 27 novembre suffisait de presque rien : promises and pitfalls of 2007 à l’adresse suivante en ligne : L’Encyclopé- open federalism, aux pp. 25-37); pour un portrait die canadienne Constitutional Forum constitutionnel 69 in the New Century : New Dynamics, New Paroles d’un discours de Claude Ryan lors d’un Opportunities, Montréal et Kingston, McGill- débat à l’Assemblée nationale le 30 septembre Queen’s University Press, 2007; et enfin voir 1981 dans : Réal Bélanger, Richard Jones et Marc Alain-G. Gagnon, dir., Le fédéralisme canadien Vallières, Les grands débats parlementaires 1792- contemporain : fondements, traditions, institu- 1992, Québec, Presses de l’Université Laval, 1994 tions, Montréal, Presses de l’Université de Mon- à la p. 39. tréal, 2006. 32 Christian Dufour, Lettre aux souverainistes 22 Débats de la Sénats, 1 (16 octobre 2007) aux pp. québécois et aux fédéralistes qui sont restés fidèles 1-7 (Son Excellence la Gouverneure générale). au Québec, Montréal, Stanké, 2000 à la p. 114. 23 Charte supra note 1, art. 1. 24 Stéphane Dion, « Notre pays est en danger », La Presse [de Montréal] (8 mars 1996) B7. 25 Pour une interprétation philosophique de cela, voir James Tully, Une étrange multiplicité : le constitutionnalisme à une époque de diversité, Québec, Presses de l’Université Laval, 1999 aux pp. 142-45. 26 (R.-U.), 30 & 31 Vict., c. 3, reproduite dans L.R.C. 1985, app. II, no 5 (LLJCan). 27 Voir Janet Ajzenstat et al, Débats sur la fonda- tion du Canada, trad. par Stéphane Kelly et Guy Laforest, Québec, Presses de l’Université Laval, 2004 aux pp. 336-37 et 378. On y trouve les dis- cours de deux députés à l’Assemblée législative du Canada-Uni, M.C. Cameron et Christopher Dunkin, établissant clairement un lien entre l’article 94 et un statut asymétrique fort pour le Québec, tout cela ayant été négligé par plusieurs générations de constitutionnalistes québécois! 28 Commission de consultation sur les pratiques d’accommodement reliées aux différences cul- turelles, Accommodements et différences : vers un terrain d’entente, la parole aux citoyens; Docu- ment de consultation, Gouvernement du Québec, 2007 à la p. v. 29 Guy Laforest, Pour la liberté d’une société dis- tincte, Québec, Presses de L’Université Laval à la p. 256. 30 Beverley McLachlin, « En pleine maturité : l’identité nationale canadienne et la Charte des droits », discours prononcé lors d’un colloque à Ottawa sur Les droits et les libertés au Canada, vingt ans après l’adoption de la Charte. Consulté en ligne le 27 novembre 2007 à l’adresse suiv- ante : Cœur suprême du Canada < http://www. scc-csc.gc.ca/aboutcourt/judges/speeches/char- ter_f.asp >. 31 « Nous devons conclure avec beaucoup de fer- meté que chaque fois que l’Assemblée nationale est atteinte dans ses prérogatives essentielles, c’est le peuple du Québec lui-même qui est atteint. Être indifférent à une atteinte faite aux pouvoirs de l’Assemblée nationale, c’est être indifférent ou traiter à la légère les aspirations et la réalité fondamentale du peuple québécois lui-même ». 70 Volume 16, Number 2, 2007 Charter Checks and Parliamentary Balances Dennis Baker & * Rainer Knopff Introduction Reasonable Disagreement? According to its most enthusiastic support- Does the Charter prevent the tyranny of the ers, the Canadian Charter of Rights and Free- majority or does it help the majority prevail over 1 doms fulfills two major functions in Canada’s executive dictatorship? “As elected institutions,” democratic regime: 1) it shields minorities from says Kent Roach, legislatures “have an interest in the excesses of majoritarian decision-making, maximizing the rights of more popular groups” in effect guarding against the famous “tyranny at the expense of less popular ones.2 This line of the majority”; and 2) it shields the majority of argument rightly maintains that our regime from the excesses of power concentrated in the is not simply democratic in the sense of popu- Canadian executive (“executive dictatorship”). list majoritarianism. Instead, ours is a liberal or While these two claims are in considerable ten- constitutional democracy that seeks to forestall sion with each other, there is an even more im- the tyranny of the majority through institution- portant conflict between each of them and the al checks and balances – in this case a Charter- widely-accepted notion that most Charter cases empowered judiciary checking and balancing a arise from reasonable disagreements over cor- democratically responsive legislature. rect policy. It is difficult to work through these overlapping tensions without questioning the The alternative view sees the legislative pro- orthodoxy that judicial power under the Char- cess not as dangerously responsive to major- ter compensates for the lack of moderating ity opinion, but rather as unresponsive to the checks and balances within our parliamentary majority. For example, Joseph Fletcher & Paul system of government. To question that ortho- Howe, and Lorne Sossin maintain that court doxy is in turn to rediscover the merits of an rulings on gay rights issues often correspond older view, dating back to the founders, that did more accurately to public opinion than do leg- 3 not consider the idea of parliamentary checks islative measures. For Sossin, judicial action in and balances to be an oxymoron. The rediscov- these instances merely “accelerates” desirable ery of parliamentary checks and balances does and virtually inevitable change. In this view, not imply the undesirability of additional judi- Charter challenges provide a means for the ex- cial checks, but it does require a more nuanced pression of popular will when a publicly unre- 4 understanding of those checks than the ortho- sponsive legislature stands in the way. doxy provides. Why are legislatures less responsive to the majority than courts in this second view? Be- Tyranny of the Majority, cause, rather than being truly representative, legislatures have become de facto executive dic- Executive Dictatorship, or tatorships. “[M]uch public decision-making no Constitutional Forum constitutionnel 71 longer occurs in Parliament,” Martha Jackman The internally unchecked Parliament is feared writes; “[m]any of the decisions which have the in the one case as the vehicle of majority excess, greatest impact on individual welfare are made and in the other as the vehicle of democratically by Cabinet and by other parliamentary dele- unresponsive elites; in either case, a judiciary gates within government departments, admin- enforcing the Charter is viewed as the only real- istrative agencies, and quasi-governmental bod- istic check on parliamentary excess. ies,” she continues.5 In parliamentary systems, Trevor Allan suggests, “[i]t seems necessary . . . Despite this common ground, there is an to match executive discretion with judicial dis- obvious tension between the tyranny-of-the cretion,” so that judges can offer “genuine pro- majority and the executive-dictatorship justi- tection from abuse of executive power.”6 In a fications of a Charter-enhanced judicial check similar vein, Ian Greene et al. upbraid Charter in our system of government: one argument skeptics for failing “to recognize the essentially seeks to restrain the majority, the other seeks corrective role of the courts in a system of par- to liberate it. Elsewhere, one of us has explored 10 liamentary majority rule where the executive this tension at length; here we set it aside – as- dominates the policy process,”7 and Lorne Sos- suming for argument’s sake that the Charter sin maintains that “a robust and independent protects us against either or perhaps both ma- judiciary” is one of the few “external checks” on jority tyranny and executive dictatorship – in the “very small group of very powerful individ- order to focus on the tension between each of uals [who] shape the policy and politics of the these views and a third widely accepted claim, country.”8 Here again, we find a checks and bal- namely, that Charter issues are generally mat- ances perspective at work, only this time the ju- ters of reasonable disagreement. diciary is checking not the legislative tendency Peter Russell pioneered this third claim in towards democratic tyranny but the executive Canada in his seminal article “The Political dictatorship’s flouting of public will. Purposes of the Charter,” which maintained Clearly, the view of Canada’s founders that that most Charter cases deal not with the core rights would be protected through checks and of rights but rather with issues arising at their 11 balances within the parliamentary system of periphery. At this periphery, there is room for government no longer prevails. Richard Cart- legitimate disagreement where neither side has wright expressed the founding perspective a monopoly on rationality and where both sides during the Confederation debates, maintain- present positions at least plausibly consistent ing that parliamentary government was replete with the Constitution. Many, if not most, schol- “with safeguards – with latent checks of all ars have since followed Russell’s lead. For exam- kinds – checks established, many of them, more ple, in The Supreme Court on Trial, Kent Roach by custom and usage than by positive law – as devotes an entire chapter to the “myth of right 12 to make it all but impossible for any majority, answers.” Ian Greene similarly maintains that however strong, to perpetrate any gross act of there tend to be reasonable arguments on both 13 injustice on a minority.”9 According to our con- sides of Charter issues. And Janet Hiebert’s temporary orthodoxy, by contrast, the so-called work is thoroughly infused by the conviction “fusion” of legislative and executive branches that the basic normative ideals and values rep- under responsible government, together with resented by the Charter “give rise to different, 14 the absence (provincially) or practical insig- but nevertheless reasonable, interpretations.” nificance (federally) of bicameralism, means But here we encounter a puzzle: How that the only serious checks and balances in is it that the legislative tyranny of the major- our system are found in the interaction between ity or our executive dictatorship generally pro- the parliamentary and judicial branches of gov- duces policies within the realm of reasonable ernment, not within parliamentary institutions disagreement? In fact, if either or both of these themselves. Both the tyranny of the majority images – tyranny of the majority and execu- and the executive dictatorship defences of Char- tive dictatorship – were accurate, we could not ter-based judicial power rest on this orthodoxy. plausibly expect most policy to fall within the 72 Volume 16, Number 2, 2007 bounds of “reasonable disagreement.” Instead, continue to play a significant role in ensuring we would expect to find a court knocking down moderate policy outcomes in the Charter era? egregious and immoderate laws on clearly man- Ironically, according to some, the Charter itself dated constitutional grounds. Simply put, if it is may have caused the political process to become true that Charter issues do generally fall within less moderate. “One of the unfortunate conse- the bounds of reasonable disagreement, both quences of the Charter,” argues Kent Roach, “is the tyranny of the majority and executive dic- that Parliament has abdicated its proactive law tatorship claims must be crude oversimplifica- reform role and increasingly relies on the Court tions of our legislative-executive complex. Put to articulate and enforce minimum standards slightly differently, if the reasonable differences of fairness for the accused.” 20 In other words, view holds, can it be because there are more the Charter frees the legislative process to be- non-judicial checks and balances at work in our come more extreme than it might have been ab- parliamentary institutions than are generally sent the Charter. Perhaps, but to the extent that acknowledged? Is the founding view expressed the legislative process continues to pose ques- by Richard Cartwright perhaps not as outdated tions of reasonable disagreement to the courts, as our current orthodoxy assumes? might we not reasonably assume that moder- ating forces internal to that process are still at How else do we explain Canada’s long histo- work? Unless, of course, it is the prospect of ju- ry of policy moderation prior to the enactment dicial invalidation itself that encourages mod- of the Charter? Over the course of Canada’s eration within the legislative process, but that constitutional history, it has been legislatures, view sits rather uneasily with the claim that the not courts, that have taken the leading role in same prospect liberates legislatures from their securing civil rights and liberties. Prior to being restraint. And why, one might wonder, would “saved by the Charter” in 1982, Canadians were either a tyrannical majority or an executive protected by progressive due process legislation dictator (i.e., an executive prepared to ignore 15 (the Canada Evidence Act and the Young Of- backbenchers) fear judges? No, the possibility 16 fenders Act being two pre-Charter milestones), that the institution that throws up questions of statutory human rights codes (the Ontario Hu- “reasonable disagreement” has sources of mod- 17 man Rights Code, for example, has been in eration within itself cannot be dismissed out of force since 1962), and by a variety of ancillary hand. Not that our parliamentary institutions legislation. As Peter Hogg points out, Canada’s could not be improved, we hasten to add. But pre-1982 record on civil liberties “while far improvement must be undertaken with full from perfect, seems to be much better than that awareness of existing strengths as well as weak- of most of the countries in the world, although nesses. We need a better appreciation of how, nearly all countries have bills of rights in their even in our flawed system, legislative outcomes 18 constitutions.” Hogg argues that “[t]he basic tend to be kept within the bounds of reasonable reason for this has very little to do with the con- disagreement before any court has its say. tents of Canada’s (or any other country’s) con- stitutional law,” but rather with “the democratic character of Canada’s political institutions, sup- Parliamentary Checks and Balances ported by long traditions of free elections, op- position parties and a free press.”19 (One might There is no better place to begin than with have thought that Canada’s political institutions the often forgotten insight of a previous gen- would be part of the “content of Canada’s con- eration of institutional scholars, represented stitutional law” but such is the state of modern in R. MacGregor Dawson & Norman Ward’s Canadian constitutional thinking). statement that first ministers – our executive dictators – will be “sufficiently wise and far-see- If, as Hogg contends, Canada’s representa- ing to limit [their] demands … to those which tive institutions were capable (though not “per- will gain the general acceptance of [their par- fect”) protectors of civil liberties before 1982, liamentary] followers.”21 Even trained seals, in is there any reason to suppose that they do not other words, can be pushed too far. Does this Constitutional Forum constitutionnel 73 intra-parliamentary check explain the moder- media gaffes. However, as Chrétien bemoaned, ate policy outcomes which ground the “reason- management of the caucus is itself a source of able disagreement” view of Charter disputes? To media interest: “If I impose a decision, you say I address this question, imagine a prime minister am a dictator, and if I listen to them, the caucus with such truly extremist inclinations that his is split.”27 Given its internalization into prime legislative agenda involved questions at the core ministerial thinking and planning, it is difficult rather than the periphery of our constitutional to conclude that the formal power of the Com- rights. Unless this prime minister has the cour- mons over the prime minister plays no part in age to overthrow the constitution altogether, hemming in executive power. he can impose his policy preferences only by persuading Parliament to enact them (and, sub- One might note, in this regard, that although sequently, the bureaucracy to execute them in the formal power of Parliament to oppose the the way he prefers). Dawson & Ward note that prime minister is rarely overtly manifested, while “general acquiescence [to a prime minis- prime ministers are occasionally reminded of its ter’s wishes] can within limits be assumed . . . reality. In Chrétien’s case, his final term (2000- this co-operation is usually given with some re- 2004) included two publicly visible examples of serve, and the possibility of dissatisfaction and such challenges: the addition of sunset clauses 28 even revolt, though it may be remote, is never to the anti-terrorism bill, and the amendments 29 entirely absent.”22 As Scott Gordon argues in to the species-at-risk legislation. These suc- the British context, if the prime minister “is a cessful challenges, made against a prime min- dictator, he is a singularly curious one: unable ister freshly elected (in November 2000) with a to determine state policy unilaterally, required 106 seat advantage over the Official Opposition, to endure unremitting and unrestrained pub- demonstrate that the centre is not as hopelessly lic criticism, and subject to dismissal without a beyond any formal controls available to legisla- shot being fired.”23 A similar critique might be tors as Charter enthusiasts might assume. leveled at Jeffrey Simpson’s description of the The first example – the amendments to the Canadian prime minister as a “friendly dicta- Chrétien government’s anti-terrorism package tor”; “restrained” might be a better qualifier 24 – is a powerful one since it is reasonable to as- than “friendly.” sume that the executive’s hand might be stron- Evidence for this can be found even in ger when there is a palpable sense of “emergen- Donald Savoie’s Governing from the Centre, the cy” as there was following 11 September 2001. book most often used to support the proposi- The Government responded to the heightened tion that an all-powerful prime minister faces threat of terrorism with two pieces of legisla- 30 no serious check from Parliament.25 Savoie’s tion: Bill C-36, primarily addressing the need 31 other major theme – the centre’s lack of policy for additional police powers, and Bill C-42, ambition in favour of management of the status primarily addressing the need for additional quo – is rarely referenced. One might ask why public safety measures. The latter proved to be Jean Chrétien, Savoie’s most centralizing prime so poorly drafted and unpopular that the Gov- minister and the basis of Simpson’s “friendly ernment abandoned it in favour of new public 32 dictator,” is also criticized by Savoie for being safety legislation in the Spring of 2005. The “the managerial prime minister.” Savoie de- former, however, was strongly supported by scribes Chrétien’s “managerial mindset” as no- Prime Minister Chrétien and Justice Minister tably eager to “avoid bold initiatives or attempts Anne McLellan. In particular, Chrétien and to lead the country in redefining itself.”26 With McLellan insisted that, despite Bill C-36’s con- respect to its legislative agenda, it is difficult to stitutionally questionable changes to police pro- argue that the Chrétien government took full cedure (such as the use of “preventative arrest”), advantage of its supposed power. Savoie him- it was unwise to attach a sunset clause, which self, alert to this curiosity, argued that it was would have extinguished the Act after a set pe- a function of external limitations, particularly riod, thus requiring a reenactment by a future the central bureaucracy’s intense desire to avoid Parliament to remain in force. Prime Minister 74 Volume 16, Number 2, 2007 Chrétien was particularly dismissive of this the House of Commons” over the objections proposal, declaring that a sunset clause was of the committee.41 This approach alienated inappropriate because “we don't know when backbench Liberals, who generally fell into two terrorism will be over.”33 This position became camps within the caucus: an environmentalist increasingly untenable as academic criticism camp, which argued that the legislation did not of Bill C-36 began to mount. A well-publicized go far enough in protecting endangered spe- conference at the Faculty of Law, University cies, and a camp of rural members concerned of Toronto, included a forceful critique of the with the property rights of their constituents. legislation by Liberal backbencher and consti- In the months following the committee report, tutional law professor Irwin Cotler.34 Never- the Government attempted to assuage critics by theless, Chrétien continued to oppose a sunset establishing an Aboriginal commission to over- clause; at a private caucus meeting in November see the enforcement of the Act (as demanded 2001, he dressed down his backbench critics and by Liberal backbench MP Rick Laliberte), and firmly rejected their demand for such a clause. by making a binding commitment that spe- “I think he pretty well closed the door on the cific regulations for landowner compensation sunset clause,” leaked one MP, but added that “I would be forthcoming (as demanded by the don't think MPs have given up.”35 If the execu- rural caucus, led by MP Murray Calder).42 The tive dictatorship view were true, it should have Government was unsure that, even with these been easy for Chrétien to follow through on his major concessions, it would have the unani- publicly stated commitment and resist the de- mous support of the Liberal caucus or, indeed, mands of his backbenchers. In reality, however, that the Act would pass at all. Nevertheless, En- the centre of government could not simply im- vironment Minister David Anderson publicly pose its preference: “Bowing to intense public declared that there would be no more changes pressure and forces within her own caucus, Jus- to the bill.43 On the eve of the vote, the Govern- tice Minister Anne McClellan . . . presented a ment blinked and capitulated to the environ- handful of amendments to Bill C-36 that eased mentalist members of the caucus by accepting most of the concerns of Liberal MPs and the two key amendments (the federal government Canadian Alliance . . .”36 By leading the charge, would protect species on federal property and one newspaper account suggested, Irwin Cotler Cabinet would be given a nine-month deadline “set a new benchmark on how far a backbencher to determine whether a species warranted pro- can confront his own government and live to tell tection).44 With these changes, the Act passed the tale.”37 It is telling that when the Anti-Ter- by a vote of 148-85. Chrétien suggested that his rorism Act’s38 most controversial measures were role in the process was less dominant than the removed from the statute, it was by parliamen- friendly dictator characterization implies: “My tary review and not by judicial intervention. caucus – they have views. They are there for that and sometimes one group doesn't agree with The Government’s retreat on the sunset the other and it's the beauty of my job: I sit be- clause was echoed in its maneuvering over spe- tween them all the time and eventually we find cies-at-risk legislation in 2002. In that case, the a solution.”45 One thing is certain: in the case of 39 Chrétien government introduced Bill C-5 to the species-at-risk bill, Cabinet did not simply meet Canada’s international obligations, prom- get its way, as the “fusion” model predicts. In a ised in 1992, for the preservation of endangered candid interview months later, Minister Ander- species. Upon consideration of the bill, the son felt “he should have held firm on the endan- House environment committee suggested over gered species bill” and even though he was “glad 100 amendments – mainly addressing the con- it passed” he would not check his “skepticism tentious issues of landowner compensation, ab- about some of the proposals… simply because original administration of the law, and manda- they were ultimately accepted. It's not because I tory wildlife preservation on federal lands – but was persuaded they were all right.”46 the Cabinet reversed almost every one of the committee’s recommendations.40 The Govern- No one would suggest, of course, that the ment’s strategy was simply to “ram it through backbench influence over the anti-terrorism Constitutional Forum constitutionnel 75 legislation or the Species at Risk Act47 is typical the main) barrier against the forces of majority of the Canadian legislative process. These are tyranny or executive dictatorship is both non- exceptional cases that prove the rule of execu- sensical and counterproductive. tive domination, but they also demonstrate that the formal power of legislators to reject execu- tive demands sets outer limits to what the exec- Notes utive is likely to attempt or achieve. Without the * Dennis Baker, Department of Political Science, power to check the executive’s proposals before University of Guelph; Rainer Knopff, Depart- they become law, it is doubtful that backbench- ment of Political Science, University of Calgary. ers would have influenced the anti-terrorism and species-at-risk debates as much as they did. 1 Part I of the Constitution Act, 1982, being Sched- A significant number (approximately 30 percent ule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]. in the last three majority Parliaments) of gov- 2 Kent Roach, “Constitutional and Common Law ernment bills introduced never receive Royal Dialogues between the Supreme Court and 48 Assent. Even though a presumably large (but Canadian Legislatures” (2001) 80 Canadian Bar unknown) number of these bills are voluntarily Review 481 at 529. abandoned by the government (lost through 3 Joseph F. Fletcher & Paul Howe, “Supreme Court prorogation, etc.), the burden of the legislative Cases and Court Support: the State of Canadian process is clear. Any government would surely Public Opinion” (2000) 63 Choices 30 at 37-42; prefer to govern without the formal requirement Lorne Sossin, “Courting the Right,” Book Review that it govern through legislation approved by of The Charter Revolution & The Court Party by Parliament. The fact that they cannot, and do F.L. Morton & Rainer Knopff, (2000) 38 Osgoode not do so reflects the reality of parliamentary Hall Law Journal 531. checks and balances and the internalization of 4 Ibid. 5 Martha Jackman, “The Cabinet and the Consti- their moderating demands. tution: Participatory Rights and Charter Inter- ests: Manicom v. County of Oxford” (1990) 35 McGill Law Journal 943 at 945. Conclusion 6 T. R. S. Allan, Law, Liberty, and Justice: The Legal One need not choose between legislative and Foundations of British Constitutionalism (Ox- judicial checks as moderating influences in our ford: Clarendon Press, 1993) at 8. political system. Indeed, Canadians would be 7 Ian Greene et al., Final Appeal: Decision-Making in Canadian Courts of Appeal (Toronto: James well served by multiple and overlapping checks Lorimer & Company, 1998) at 6. and balances. It is the portrayal of Charter- 8 Lorne Sossin, “The Ambivalence of Executive based judicial power as the only effective mod- Power in Canada” in P.P. Craig & Adam Tom- erating check (on either majority tyranny or ex- kins, eds., The Executive and Public Law: Power ecutive dictatorship) that cannot be sustained. and Accountability in Comparative Perspective It may be true, as Chief Justice McLachlin of the (Oxford: Oxford University Press, 2006) at 52. Supreme Court of Canada says, that the Charter 9 Janet Ajzenstat, ed., Canada’s Founding Debates performs “a healthy function in allowing our (Toronto: Stoddart, 1999) at 19. differences to be aired and resolved in a peaceful 10 Rainer Knopff, “How Democratic is the Charter? way, rather than by oppression and violence,”49 And Does it Matter?” in Joseph Eliot Mag- but it is difficult to believe that the courts’ set- net et al., The Charter of Rights and Freedoms: tlement of reasonable disagreements is all that Reflections on the Charter After Twenty Years (Markham, Ontario: Butterworths, 2003). stands between us and chaos. The politics of 11 Peter H. Russell, “The Political Purposes of the representative government offers a non-judicial Canadian Charter of Rights and Freedoms” (but still peaceful) way of resolving differences (1983) 61 The Canadian Bar Review 30. that similarly avoids “oppression and violence.” 12 Kent Roach, The Supreme Court on Trial: Judicial Judicial power under the Charter may make an Activism or Democratic Dialogue (Toronto: Irwin important contribution to our system of checks Law, 2001). and balances, but treating it as the only (or even 13 Ian Greene, The Courts (Vancouver, B.C.: UBC 76 Volume 16, Number 2, 2007 Press, 2006) at 146. The Concentration of Power in Canadian Politics 14 Janet L. Hiebert, Charter Conflicts: What is (Toronto: University of Toronto Press, 1999). Parliament’s Role? (Montréal: McGill-Queen’s Cited by Robin Elliot, “‘The Charter Revolution University Press, 2002) at 72. and the Court Party’: Sound Critical Analysis or 15 Canada Evidence Act, R.S.C. 1985, c. C-5. Blinkered Political Polemic?” (2002) 35 Universi- 16 Bill C-61, The Young Offenders Act, was intro- ty of British Columbia Law Review 273 at 325, n. duced on February 16, 1981 and was given Royal 185; James B. Kelly, Governing with the Charter: Assent in July of 1982. Therefore, the genesis Legislative and Judicial Activism and Framers’ and drafting of the Bill can be described accu- Intent (Vancouver: UBC Press, 2005) at 225-26. rately as “pre-Charter” even if its official enact- 26 Donald J. Savoie, “The Managerial Prime Minis- ment comes shortly after the Charter arrives. ter” Policy Options (November 2000) 10. Young Offenders Act, 1980 81 82 83, (Can.), c. 27 Steven Chase, “Endangered species bill trouble” 110; Young Offenders Act, R.S.C., 1985, c. Y 1. The Globe and Mail (1 May 2002) A5. 17 Ontario Human Rights Code, R.S.O. 1990, c. H- 28 Janice Tibbetts and Jim Bronskill, “Terror bill 19. gets facelift: Minister offers a 5-year sunset clause 18 Peter W. Hogg, Constitutional Law of Canada, on some provisions, refines wording” The Gazette 4th ed. (Scarborough, Ontario: Carswell, 1997) at (21 November 2001) A13. 31-33. 29 Kate Jaimet, “Liberals demanded favours to pass John White disagrees and suggests that Canada’s bill” The Ottawa Citizen (27 December 2002) A1 record is marred by too many instances of “polit- [Favours]. ical passion directed at conspicuous minorities,” 30 Bill C-36, An Act to amend the Criminal Code, in John White, “Not Standing for Notwithstand- the Official Secrets Act, the Canada Evidence Act, ing” in Mark William Charlton & Paul Freder- the Proceeds of Crime (Money Laundering) Act ick Barker, eds., Crosscurrents 1: contemporary and other Acts, and to enact measure respecting political issues (Scarborough, Ontario: Nelson the registration of charities in order to combat ter- Canada, 1991) at 66. Janet Ajzenstat, “Reconcil- rorism, 1st sess. 37th Parl., 2001. ing Parliament and Rights: A. V. Dicey Reads 31 Bill C-42, An Act to amend certain Acts of the Canadian Charter of Rights and Freedoms” Canada, and to enact measures for implementing (1997) 30 Canadian Journal of Political Science the Biological and Toxin Weapons convention, in 645 at 658. order to ensure public safety, 1st sess., 37th Parl., 19 Hogg, ibid. at 31-33. 2001. 20 Roach, supra note 2 at 182. Mark Tushnet makes 32 Bill C-6, An Act to establish the Department of a similar observation but argues that “judicial Public Safety and Emergency Preparedness and to overhang” is an argument against judicial inter- amend or repeal certain Acts, 1st sess., 38th Parl., pretive supremacy. See Mark V. Tushnet, Taking 2005. the Constitution Away from The Courts (Princ- 33 Janice Tibbetts, “PM rejects ‘sunset clause’ in eton: Princeton University Press, 1999); Mark V. terror law” The Ottawa Citizen (22 October 2001) Tushnet, “Legislative and Judicial Interpretation” A5. in Richard W. Bauman and Tsvi Kahana, eds., 34 Held November 9th and 10th, 2001. The essays The Least Examined Branch: The Role of Legis- presented at this conference can be found in latures in the Constitutional State (Cambridge; Ronald J. Daniels, Patrick Macklem & Kent New York: Cambridge University Press, 2006) at Roach, eds., The Security of Freedom: Essays on 357. Canada’s Anti-terrorism Bill (Toronto: University 21 Robert MacGregor Dawson, W. F. Dawson & of Toronto Press, 2001). Cotler’s contribution to Norman Ward, Democratic Government in Cana- this volume is entitled “Thinking Outside the da, 5th ed. (Toronto: University of Toronto Press, Box: Foundational Principles for a Counter-Ter- 1989) at 47. rorism Law and Policy.” 22 Ibid. 35 Shawn McCarthy, “No sunset clause for antiter- 23 Scott Gordon, Controlling the State: Constitution- ror bill, PM tells his caucus” The Globe and Mail alism from Ancient Athens to Today (Cambridge, (1 November 2001) A7. Massachusetts: Harvard University Press, 1999) 36 Daniel Leblanc, “Ottawa softens terror bill”The at 336. Globe and Mail (21 November 2001) A1 [empha- 24 Jeffrey Simpson, The Friendly Dictatorship (To- sis added]. ronto: McClelland & Stewart, 2001). 37 Philip Authier, “The man in the middle: Civil- 25 Donald J. Savoie, Governing from the Centre: rights lawyer trod a fine line in debate” The Constitutional Forum constitutionnel 77 Gazette (8 December 2001) B4. 38 S.C. 2001, c. 41. 39 Bill C-5, An Act respecting the protection of wild- life species at risk in Canada, 2nd sess., 37th Parl, 2002. 40 Kate Jaimet, “Species at risk bill gets House’s OK: Compromises calm Grit turmoil” Calgary Herald (12 June 2002) A5 [Jaimet, “Species at risk”]. 41 Chase, supra note 27. 42 Jaimet, “Species at risk” supra note 40. 43 Ibid. 44 Ibid. 45 Chase, supra note 27. 46 Jaimet, “Favours,” supra note 29. 47 S.C. 2002, c. 29. 48 Government of Canada, Table of Legislation Introduced and Passed by Session, online:< http:// www2.parl.gc.ca/Parlinfo/compilations/House- OfCommons/BillSummary.aspx?Language=E>. See also, Craig Forcese & Aaron Freeman, The Laws of Government: The Legal Foundations of Canadian Democracy (Toronto: Irwin Law, 2005) at 638. 49 Beverly McLachlin, “The Charter 25 Years Later: The Good, the Bad, and the Challenges” (2007) 45 Osgoode Hall Law Journal 365 at 370 (approv- ingly citing the work of Philip Pettit). 78 Volume 16, Number 2, 2007 Sometimes Constitutions are Made in the Streets: the Future of the Charter’s Notwithstanding Clause John D. Whyte* This article examines the future of section ment — it is the recognition of rights that will 33 of the Charter of Rights and Freedoms (the triumph over the legislative power contained notwithstanding clause)1 — specifically, its po- in the notwithstanding clause. That legislative litical future. It explores whether it is a consti- power is, after all, a form of constitutional de- tutional instrument which is likely to be used in claratory power and, hence, is by definition an the future by legislatures or by Parliament.2 The instrument which, while clearly within Cana- article is premised on the idea that popular po- da’s constitutional structure, will also be seen litical notions about political and constitutional as one of constitutional suspension. This means legitimacy, while often formed by the constitu- that it is the capacity of the notwithstanding tional text, sometimes evolve independently of clause periodically to suspend the rights regime the text. When this happens, these new concep- that will be seen as anomalous. In short, a con- tions of legitimacy will constrain the exercise of stitution which protects rights, but only until a constitutional powers no matter how clearly the democratic majority decides that they should be powers are conferred by the text. From this per- suspended, will come to strike citizens as unin- spective, this article argues that in an apparent telligible. regime of entrenched rights, such as Canada’s, the legislative suspension of rights will be re- In exploring the political legitimacy of over- garded as less reflective of the constituted order riding rights in some circumstances, Jeremy — and, hence, less legitimate — than will hav- Waldron has made the useful distinction be- ing legislatures insist that their choices should tween conflicts over the determination of what prevail over constitutional rights in some cir- conduct is actually protected by a right and the cumstances. claim that, in a specific context, it is inappropri- ate to entertain rights claims at all.3 The former This claim is made in full recognition that he labels rights disagreements: all authorities of Canada’s constitutional order includes only the state — the executive, the legislature and the a weak version of entrenchment — it subjects courts — accept that in the particular circum- some rights to suspension by the legislative or- stance a rights claim can legitimately be made, der in full acknowledgement that the creation but they do not agree on whether the exercise of of competing structures for vindicating con- governmental power abridges the right that has stitutional rights in the Charter can hardly be been claimed. The latter class he labels rights considered politically incoherent. But, in the misgivings: the executive or the legislature be- great competition to establish a nation’s con- lieves that in a particular situation rights claims stitutional essence — a competition that will are simply not as important as achieving gov- always follow a period of constitutional enact- ernmental policy and, therefore, should not be Constitutional Forum constitutionnel 79 allowed.4 power to exclude certain Charter protections, conduces to a skeptical view of the legitimacy of Waldron’s distinction bears on the ques- exercises of the power it grants. tion of the intent behind the enactment of the Charter’s notwithstanding clause and, possibly, On the other hand, it may be mistaken to on the question of its political legitimacy. That overstate the significance of this distinction be- clause grants Parliament and provincial legis- tween rights disagreements and rights misgiv- latures the power to enact that some element of ings. Possibly, in the modern liberal democratic their legislation will be treated as valid, and be state, the principle of separation of powers, in allowed to operate, in spite of any legal claims its more recent developments, recognizes that that may be made based on the constitutional many governmental functions should properly recognition of fundamental liberties, due pro- be assigned to specific agencies that enjoy a de- cess, and equality. Legislative action taken gree of immunity from political interference under the notwithstanding clause is simply a (for example, electoral commissions, central declaration of the inapplicability of some of the banks, information and privacy commissions rights provisions found in the Constitution. As and, as always, courts). This principle, which a matter of form, although not always as a mat- is thought to enhance democracy by altering ter of legislative motive, an exercise of the not- structures of political accountability, may have withstanding clause is a suspension of the rights become, in the wider political community, as listed in a named section of the Charter and is strong a principle of constitutional ordering as not a legislative act taken to correct a rights de- is the protection of rights. If this is indeed the termination made by a court. Neither is it leg- case, overriding a judicial decision that has al- islative preemption of a future court’s rights ready been made by a legislature — an agency determination, prompted by the fear that there that can hardly be considered to be well suited will be mistaken or imprudent judicial protec- to assess norms designed to protect individuals tion of a right affected by legislation. from injury through state action — might also be seen as defying constitutionalism even when, Of course, there is nothing to suggest that according to the constitutional text, it clearly is the notwithstanding clause cannot serve double not.5 duty, acting sometimes as a grant of power used to sidestep rights analysis of some state actions As has been stated, to describe the notwith- by a court, and acting sometimes as an expres- standing clause as a legislative instrument for sion of the view that, in certain circumstances, suspending rights, and not just particular rights preference should be given to a legislature’s un- decisions, is to demonstrate neither statecraft derstanding of what is properly protected by a anomaly nor statecraft pathology. It is, how- designated right. The language of the notwith- ever, valuable to get the right description of standing clause, however, unmistakably confers the notwishstanding clause’s structure and its legislative power to suspend rights claims. This function in order to explore its likely future in being the form of the notwithstanding clause, it Canadian constitutionalism. Having character- will tend to be seen as a suspensive power and ized the notwithstanding clause as suspensive, its use will tend to be characterized as the sus- two questions seem pertinent. First, what kind pension of rights almost regardless of actual leg- of rights regime did the framers of this consti- islative motive. Legislative suspension of rights tutional text actually want and, second, what (even legislative suspension specifically permit- kind of rights regime do those of us who stand ted by the Constitution) is very likely to attract here, now, in our own place and time, actually greater popular suspicion and opposition than want?6 is the resort to the notwithstanding clause to correct (or to preempt) a specific and quite pos- Perhaps a word needs to be said about the sibly unpopular court decision with respect to a appropriateness of the second question. It sug- rights claim. In other words, the language of the gests a degree of malleability in our constitu- notwithstanding clause, granting the broadest tional arrangements that may not fit our idea of constitutional constancy based on acceptance 80 Volume 16, Number 2, 2007 of the constitutional text as the central reference experience of informal constitutional change, point for government acting legitimately under we can well ask whether the Charter’s notwith- law. However, one of the things that we know standing clause has remained an accepted fea- about constitutional application and interpreta- ture of our Constitution which lives on as a true tion is that, in spite of the significant legitimacy reflection of the constitutional order we want. dividend that some will claim for sticking to Or have we, on the other hand, come to regard it original understandings of what is permitted as we have other special constitutional powers, and what is restrained by our constitutional as an exigent and temporary device, politically framework,7 constitutional powers acquire new necessary when created but now detached from salience as political contexts and values change, the real and vibrant world of the lived constitu- and as new political imperatives shape the con- tion. tent of our constitutional order.8 For instance, within thirty years of Confederation in 1867, ju- Through our political choices and the re- dicial interpretation of the British North Ameri- shaping of our political morality we have “re- ca Act had turned the constitutional text upside written” many of our constitutional arrange- down in response to the adamantine refusal of ments. We have overcome the perpetuation of two provinces in particular to be drawn into the some constitutional beliefs we find hard to re- spirit, or the machinery, of a strong and domi- main committed to through an informal nor- nant national government.9 The 1867 constitu- mativization of the political order, shaped by 10 tional text offered the prospect of every sort of our self-conscious practices. From this per- federal pre-emptive and supervisory power over spective, it is sensible to ask whether the not- provinces, from the power to appoint to provin- withstanding clause, too, has ceased to be a part cial agencies, to the disallowance of provincial of Canada’s current political and constitutional legislation, to the promotion of federal legisla- culture. tive uniformity, to the power to declare provin- Let us return to the first question. What cially regulated enterprises to fall under federal kind of rights regime did the framers want? We jurisdiction, to the federal review of provincial normally speak only tentatively of the framers administration of sectarian education, and to of the Constitution Act, 1982,11 since we lack a the overarching general power of the federal clear sense of their identity. But, with respect government to provide peace, order and good to the notwithstanding clause, we know exactly government. whom we are speaking of. The section’s pres- Within a few decades, the tower of pro- ence in the Constitution is the consequence of vincial power based on its authority over legal an initiative taken by the premiers who led the relations between private persons (then a chief Anglophone members of the Gang of Eight — function of the state), was affirmed as the cen- that group of provinces which opposed Prime terpiece of the 1867 constitutional arrange- Minister Trudeau’s plan for virtually unilateral ment. At the same time, the prime source of constitutional patriation. During the consti- national capacity — the Constitution’s Peace, tutional negotiations of the summer of 1980, Order and Good Government clause — was provinces generally strenuously resisted en- reduced to a contingent and largely temporary trenching rights. This resistance took the form, power, no longer serving as the foundation of first, of some premiers simply arguing against federal authority. Likewise, almost every one of constitutionally entrenched rights altogether. the federal declaratory and supervisory powers Then, they urged weak expression of the rights fell into disuse as inappropriate instruments for to be recognized, particularly the right to due a mature federal state. Relationships between process, and the rights of accused persons and the elements of a state change (including their persons under criminal investigation. Finally, relationship with the state’s most basic element premiers proposed a broad and sweeping clause — the people), and with these changes clearly for limiting rights. A notwithstanding clause, expressed constitutional powers wither or, in however, did not form part of those intergov- some cases, find a new vitality. In light of this ernmental constitutional negotiations. That Constitutional Forum constitutionnel 81 clause first entered into political currency dur- potentially unfortunate effects of the new Con- ing the final days of the First Ministers’ meeting stitution. However, such special powers, espe- of September 1980 when Quebec tried to devel- cially when they are prompted by anxiety over, op a “common stand of the provinces.”12 Que- or resistance to, constitutional change will often bec suggested that fundamental and legal rights become otiose as experience with the newly cre- be entrenched, but that some legal and equality ated powers unfolds and the fear that there will rights be subject to a notwithstanding clause. be intolerable outcomes weakens. It is for this Although other provinces did not endorse this reason that special powers allowing usurpation proposal, it did form part of the “Chateau con- of the basic constitutional order have proven to sensus” presented to Prime Minister Trudeau, be a less durable form of constitutional arrange- who quickly rejected it. Quebec did not advance ment than provisions which establish basic rela- this proposal again. tionships. In October 1981, when the Gang of Eight Also, as was to be expected in connection met in Toronto, it faced two important politi- with the creation of a power that permits altera- cal circumstances. First, it seemed clear that tion of a basic constitutional arrangement, the the people of Canada now wanted provinces to decision was made to make exercises of the not- negotiate with Mr. Trudeau to achieve consti- withstanding clause subject to two restraining tutional resolution and, second, that substantial features. The first was to require that exercises alteration of the text of the Charter of Rights, of the clause be politically visible in terms of which had been developed and refined between their rights-restricting effect. The second was October 1980 and February 1981 in the Joint that exercises of the notwithsanding clause be Parliamentary Committee, was no longer an time-limited. What the premiers gained, then, available choice. Since the idea of a notwith- was suspension of the rights-recognition regime standing clause was not necessarily inconsistent and the return of legislative supremacy, but with these conditions, the provinces in the Gang only when a legislature believes that this visible of Eight put that proposal in its bag of options to choice will be politically attractive, or at least take to Ottawa for the meetings with the prime bearably unattractive. As for the time limit on minister to be held in early November. uses of the notwithstanding clause, this feature underscores the idea that this override power That provinces seized on the notwithstand- interrupts normal constitutional relations, and ing clause is not remarkable. It is, in essence, a it confirms the idea that it is to be used only as form of declaratory power and, as we have seen, long as circumstances warrant the removal of in constitution making such powers are not un- normal constitutional processes and norms.13 usual. They are used to give power to interrupt the ordinary course of constitutional relations Beyond these structural and strategic ex- between the branches and orders of govern- planations for the clause, there were principled ment. Such powers permit a rebalancing of rela- bases for the premiers wanting to find an instru- tionships which may have been altered through ment to blunt the effect on legislative action of new constitutional recognitions and empower- introducing constitutionalized rights. In brief, ments, and they are especially attractive when the premiers believed in the inherent superior- the effects of constitutional changes are - un ity of political judgment over judicial judgment certain and, hence, worrying. This is precisely in accommodating competing interests, includ- the situation created by the 1982 Constitution. ing interests that bear on the characterization of Judicial review of governmental action was ac- rights claims. Their campaign against the Char- corded a significantly broader scope through ter of Rights, as it was reflected in the federal the extensive new constitutional norms of the patriation package, was driven by their faith in Charter, and the impact of this change on gov- the virtues of the legislative process. ernment was not at all clear. There was a com- pelling case to be made for a legislative trump- The premiers’ case was based on five claims. ing power that could be used to ameliorate the First, regardless of the nature of a claim, repre- sentative democracy is superior to judicial deci- 82 Volume 16, Number 2, 2007 sion-making because it requires consideration were not, at heart, motivated by the desire for of the long-term interests of the whole politi- the power to correct judicial determinations of cal community: it is not one-time adjudication rights questions. They were motivated more by between state and citizen in a specific circum- their sense of the need for a device to let leg- stance. Legislative accommodations are made islatures alone respond to issues of such great in recognition of a broad range of political con- political importance, or of such high political siderations and with the knowledge that there risk, that the political community would be have been, and there will in future be, other ac- better served if the normal legislative function commodations to be made.14 Second, although of mediating interests for the public good were courts, under the Charter, would in one sense not interfered with by the courts. The record, be engaged in making rights determinations, however, also shows that some premiers wanted in another sense they would also be engaged in only to create a power to correct bad judicial resolving political disputes; important public outcomes.15 Possibly, those premiers, realizing interests would be frustrated — or vindicated that gaining legislative capacity to suspend the — in this process. But judges are not account- Charter when rights claims seemed too costly able to electors for the choices they make and was not a real option, sought the more limited electors would have no opportunity to express power to correct bad judicial decisions out of a their approval or disapproval of these outcomes. sense of political realism. The language of the Third, judicial mediation of these politically im- notwithstanding clause does not support this portant issues relating to every kind of public sense of their purpose. Neither was it seen as interest would deteriorate political engagement compelling from the point of view of consti- through the increased irrelevance of channels of tutional design since, in constitution making, political input and response. Fourth, judges are we tend to believe that review of governmental too often ignorant of, or oblivious to, the social actions for the purpose of ensuring constitu- and economic conditions that legislators devote tionality is never appropriately performed by so much of their energy to understanding, and the agency that is responsible for initiating the to which they are accustomed to responding. As action under review. On balance, then, it seems a class, judges are not suited to the essential task that the premiers’ interest was probably not of measuring the value of social and economic simply to acquire the power to correct mistaken policies — a task that is likely to determine gen- and dangerous rights decisions of the courts, eral wellbeing far more significantly than does but rather to gain the ability to suspend rights the protection of rights, and a task to which determinations so that, in some instances, rights protection should sometimes bow. Final- public interests could be pursued without the ly, the language of entrenched rights is highly uncertainty and attenuation of public policies indeterminate and the claim that judges, in ap- brought about by successful rights claims. plying rights, are engaged in the constrained and principled exercise of applying pre-estab- We now come back to the second question: lished norms and rules is simply not convinc- what kind of rights regime does the nation here ing. Entrenching rights, the premiers felt, rep- and now expect? The analysis that follows is resents the inappropriate delegation of a largely purely speculative and, perhaps, abstract and discretionary power to resolve social disputes. so may be discounted on that basis. However, statecraft, or constitutional design, will always Although these concerns represented a case be speculative in that it draws on ideas of how against the general entrenchment of rights more historical structure have worked, and it requires coherently than they represented a case for in- imagining how the imperatives and incentives cluding a notwithstanding clause, the premiers created by new configurations of power will ac- seized whatever instrument at hand to preserve tually play out. But there is no rigid channel of an ascendant role for legislative action, at least future political action; in fact, the disruption with respect to some legislative programs. What of patterns, and the upending of expectations, this examination of the premiers’ case for limit- is as much a part of constitutional history as is ing the Charter’s operation tells us is that they the predicted unfolding of the national narra- Constitutional Forum constitutionnel 83 tive according to current plans for, and under- we shall have a stronger and more stable state if standings of, institutional behaviour. All of this we protect some interests from majority power, is to acknowledge that the bravado of political then we cannot also sensibly conclude that it is prediction, as useful as it can sometimes be in tolerable to subject citizens to injury to their in- gaining a sense of our actual condition, is prop- terests some of the time, or that we shall have erly treated with skepticism and subjected to a stronger state if we were to abridge those in- doubt. terests some of the time. What is being claimed when we permit legislative suspension of rights A constitutional rights regime is based is that what is best for people is to protect their on the recognition that democratic majorities key interests until we decide not to, and what might choose policies that injure interests the best builds the stable state is to protect key inter- constitution makers have identified as ones that ests until we decide it is better that we not rec- majorities should not be allowed to harm. There ognize key interests. As I have said, these may are two bases for identifying such interests. be plausible calculations of statecraft but they First, is the potential harm to some interests are not compelling, and they are certainly not (those identified as rights), which creates what easy to grasp. The result is that politicians have is considered to be an intolerable risk for every been given a power the use of which will not, person — at least, every person who does not from the perspective of constitutional design, know what her or his future condition or needs appear to be principled or logical. It is exactly will be, or who does not know what the demo- this sort of constitutional power that over time cratic majority’s future interests and priorities will stop being exercised because it is based on will be. That is to say, constitution makers recog- inconsistency. nize the possibility of acts of state coercion that, for many, will be intolerable and they seek to Even if the sole justification for the use of forestall the state from reaching that point. Sec- the notwithstanding clause were that it permits ond, constitution makers conclude that if there substitutions of judicial decisions about the are some interests that cannot be harmed by the scope of a right with the legislature’s calcula- state, we shall likely have a healthier, safer, and tions about the scope of a right, even if citizens more stable state. This belief is really just a mat- could see that all branches of government were ter of faith and prediction — it could be wrong. equally committed to the same concepts of in- We could possibly have a state that could serve dividual and minority rights (so that there was most needs better if it were, in fact, more tyran- no longer a serious problem with the intelligi- nical. Nevertheless, the constitutional calcula- bility of the constitutional plan), there would tion is that the security of the state and the well- still be three reasons why such exercises of the being of its people are best realized through the notwithstanding clause are likely to fall outside placing of limits on the exercise of ordinary, or our sense of legitimate constitutional ordering. non-constitutional, politics. While constitu- tion makers can also decide that the best, most First, although citizens will hear and see stable of all states are the ones in which the lim- legislators talking about citizens’ rights, they its placed on state authority can be removed (in will not believe that rights protection, as op- extraordinary circumstances), they should not posed to rights suspension, is going on. This is expect citizens to consider this consistent with not because there is anything morally suspect the other statecraft calculation that there must in the legislators’ motives or actions. The purity be limits on state action to achieve the goals of of legislative motive will be doubted simply be- protection against majority tyranny, and pres- cause, as has already been noted, the Constitu- ervation of a stable society. tion describes the use of the notwithstanding clause as the suspension of rights not as the cor- If it is concluded that it is better to protect rection of rights determinations. More to the some interests from majority driven curtail- point, the interests of legislators are structurally ment because we wish to avoid the general risk determined to be driven by majoritarian inter- of intolerable injury, and if it is concluded that ests, and this structural feature of representative 84 Volume 16, Number 2, 2007 democracy will colour popular understandings resent a significant shift in general conceptions of what a legislature is actually doing when it of Canadian constitutionalism, and, I think, is corrects what it merely considers to be judicial not very likely to emerge as an element of our error. Even though we know that legislators can political culture. be fully committed — as committed as any con- stitution maker or any judge — to protecting The third point relates to the impact of sec- individual and minority rights from the impact tion 1 of the Charter on our understanding of of legislative programs, this will not forestall when and how, and by what process, Charter de- the belief that the legislators have decided, in terminations should be made. One might think respect of this particular policy, that rights are that when the application of the tests enunciated 17 less important than the broader political inter- by the Supreme Court of Canada in R. v. Oakes ests that will inevitably appear to have gener- has become the intellectual process by which, ated a rights-limiting policy. in many Charter applications, rights have been found to be violated (or not), there would not The second basis for believing that the pur- be a strong sense of the legalism of rights adju- pose of rights correction will not generate legiti- dication. However, there is another implication macy, is that our firmly established understand- to be drawn from courts’ engagement in some- ing of the constitutional order is that it has taken thing that looks very much like policy review. It the form and force of law. An equally established is this: section 1 jurisprudence requires courts constitutional understanding16 is that law appli- to review the purposes of legislative policies cation is the province of the courts. Naturally, that are claimed to be rights restricting. This one does not want to advance naïve conceptions requires governments to present to courts clear about the nature of legal determinations — that evidence of the policy purposes behind a legis- they are the product of legal science, that they lative program, as well as evidence of the likely are devoid of discretionary judgment, that they remedial effects of the policy. In other words, do not reflect political preferences, that Char- the application of section 1 by the courts pro- ter language is not immensely indeterminate, vides a government with ample opportunity or that policy review does not often lie at the to present a case for why rights may need to be heart of applying the Charter’s notwithstanding compromised in the pursuit of a public policy, clause. However, the Charter of Rights and Free- and to show that the policy was designed with doms is a legal text, and the general expectation as little negative impact on rights as possible. is that the application of law gains legitimacy when performed by the specific state agency that Under section 1, governments are required has independence; is trained in legal reason- to place their rights calculations before a court ing; is politically neutral; is bound by processes and to show how they have weighed the rela- that are open, considered, and even-handed; tive importance of rights and legislated social and is committed to fidelity to established le- purposes. Section 1 determinations provide the gal norms. Structurally speaking, legislators are exact opportunity for rights discourse from the not seen as doing law, nor do they have any of government’s perspective, that the rights-cor- the trappings that are associated with law-based rection model of the notwithstanding clause adjudication. As a consequence, their decisions recommends — except, of course, for the fact about what our constitutional law requires will that the legislature does not have the final word be suspect, not as a matter of judging their good on the question of whether the rights restriction faith, but on the question of whether those deci- is justified. The open and democratic debate over sions count as legal determinations. Of course, how best to restrict or protect rights, preferred by we could well prefer to construct our Constitu- some defenders of the notwithstanding clause, is, tion not on law-based rights application, but on in fact, a precondition to a government pleading purely political assessments of rights. Politically a section 1 justification. The ultimate outcome assessed rights claims may be exactly the right of that debate is not determined by legislative marriage of democratic process and constitu- votes, but by judicial application of constitu- tional objective. However, this view would rep- tional text; however, the application of section Constitutional Forum constitutionnel 85 1 gives legislators the same incentive to engage 2 or sections 7 to 15 of the Charter. in rights analysis as they would have were they 2 Howard Leeson has asked the same question. to use the notwithstanding clause when they See, Howard Leeson, “Section 33, the Notwith- believe the courts have made a mistaken rights standing Clause: A Paper Tiger?” (June 2000) 6 decision. Certainly it is theoretically significant, Choices 4. He suggests that the notwithstanding clause will fall into disuse, but does not believe but it may not be not be as significant from the that this will be due to popular opposition. perspective of popular perceptions, that legisla- 3 Jeremy Waldron, “Some Models of Dialogue Be- tors do not have the final word under section 1. tween Judges and Legislators” in Grant Huscroft The reason that it will not be easy to convince and Ian Brodie, eds., Constitutionalism in the the nation that the loss of that final word poses Charter Era (Markham, ON: LexisNexis Canada, significant risks to constitutional government is 2004) 7 at 36. that in constitutional design — as in the design 4 Ibid at 37. of any structure for the exercise of complex and 5 For examinations of prudent uses of the sepa- diverse powers — what really matters most is ration of powers idea, see Bruce Ackerman, the presence of mediating structures. The le- “Meritocracy v. Democracy” (8 March 2007) 29 gitimacy of governmental power is dependent London Review of Books 5 and Bruce Acker- on its being exercised with full consideration of man, “New Separation of Powers” (2000) 113 Harvard Law Review 633. each branch’s interests and each order’s goals. 6 Paraphrase of W. Whitman, Poem 6 of “Start- The combination of rights-trumping powers ing From Paumanok” in William Rossetti, ed., with governing powers provides a weak struc- Poems of Walt Whitman, (London: John Camden tural context for conducting the inevitable task Hotten, 1868) at 70-71. Whitman pays homage of mediation required in complex democracies. to the traditions, including constitutional tradi- In addition, this combination is the least stable tions, that formed him and his nation, but claims of constitutional structures because it raises the for himself and his time the right to be self-deter- greatest doubts about state legitimacy. mining. 7 See e.g., Antonin Scalia, “Common-Law Courts The premiers, in seeking to add the not- in a Civil Law System: The Role of United States withstanding clause to the Canadian Charter Federal Courts in Interpreting the Constitution of Rights and Freedoms, were driven by real and Laws” in Amy Gutman, ed., A Matter of In- and sensible concerns. But their concerns were, terpretation: Federal Courts and the Law (Princ- in the long run, not the ones that shape — or eton: Princeton University Press, 1997) 3. should shape — the way democratic constitu- 8 Clearly, this idea of constitutional change is tions work. not everybody’s idea of a good idea. See, e.g., Antonin Scalia, “Romancing the Constitution: Interpretation as Invention” in Huscroft and Notes Brodie, supra note 5 at 337. Justice Scalia writes at 344: “This is a terrible system . . . the Constitu- * Senior Policy Fellow, Saskatchewan Institute of tion it produces — a Constitution congenial to Public Policy, University of Regina. the majority — is hardly a Constitution worth An earlier version of this article was delivered having, since the whole purpose of constitutional at The Charter @ 25, a conference of The McGill guarantees is precisely to frustrate the wishes Institute for the Study of Canada, Montreal, 14- of the majority.” But see Mark Tushnet, The 16 February 2007. New Constitutional Order (Princeton: Princeton University Press, 2003), in which the ongoing 1 Canadian Charter of Rights and Freedoms, s. reconstruction and transformation of the con- 33, Part I of the Constitution Act, 1982, being stitutional order is described and defended, or Schedule B to the Canada Act 1982 (U.K.), 1982, consider the almost universal Canadian approba- c. 11 [Charter]. Section 33(1) of the Constitution tion of the “living tree” interpretative approach Act, 1982 states: Parliament or the legislature of a articulated by Lord Sankey in Edwards v. Canada province may expressly declare in an Act of Par- (Attorney General), [1930] A.C. 124 at 136. liament or of the legislature, as the case may be, 9 Constitution Act, 1987 (U.K.), 30 & 31 Vict., c. 3, that the Act or a provision thereof shall operate reprinted in R.S.C. 1985, App. II, No. 5. More ac- notwithstanding a provision included in section curately, one might say that the early decisions of 86 Volume 16, Number 2, 2007 the Judicial Committee of the Privy Council were 15 In truth, there seems to be no clear sense of the a response to advocacy by counsel for the prov- nature of the instrument that had been agreed inces, which were determined to preserve a large on. At the November 1981 First Ministers’ meet- civil law jurisdiction for themselves, and which ing, Premier Allan Blakeney said: “[The] Charter presented this capacity as the moral foundation of Rights . . . allows Parliament and legislators to of Confederation. override a court decision which might affect the 10 The notion of constitutional dynamism gener- basic social institutions of a province or region . . ated outside the process of formal constitu- . .” (quoted in Johansen & Rosen, supra note 12 at tional amendment, through a dualist democracy 5). consisting of constitutional moments effecting 16 The role of courts in preserving the rule of law is non-textual constitutional transformation, and not just a popular or political commitment. It is normal politics, is explored in Bruce Ackerman, constitutionally expressed in Part VII (”Judica- We The People: Transformations (Cambridge: ture”) of the Constitution Act, 1867. See, William Belknap Press, 1998). See Tushnet, supra note 8, Lederman, “The Independence of the Judiciary” for a similar treatment of constitutional reform. (1956) 34 Canadian Bar Review 769. Tushnet finds Ackerman’s sharp division be- 17 [1986] 1 S.C.R. 103 (CanLII). tween constitutional moments and the course of normal politics to be unconvincing (supra note 8 at 98-99). 11 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 12 See, Roy Romanow, John Whyte and How- ard Leeson, Canada . . . Notwithstanding: The Making of the Constitution 1976-1982 (Toronto: Carswell/Methuen, 1984) at 96-98. This history is also presented in David Johansen & Philip Rosen, “The Notwithstanding Clause of the Charter,” Library of Parliament, Parliamentary Informa- tion and Research Service PRB 194E (May 2005), available at: Constitutional Forum constitutionnel 87 The Unlikely Union of Same-Sex Marriage, Polygamy and the Charter in Court Matthew Hennigar* For several years now, I have been doing cutor, Richard Peck, recommended instead that work on litigation surrounding same-sex mar- the government seek legal guidance by referring riage (SSM), and when I present my research the constitutionality of section 293 to the B.C. (both at conferences and informally over Court of Appeal (with an appeal to the Supreme drinks), I am almost invariably asked how court Court likely). On 1 August 2007, B.C. Attorney decisions legalizing SSM1 will affect the laws General Wally Oppal—who has gone on record against polygamy. As a recent article in the To- with the view that polygamy is demeaning to ronto Star observed,2 gay marriage is often seen women and unacceptable—indicated that his as a “slippery slope” to polygamy; some argue government would follow Peck’s advice and that it opens the jurisprudential door to other refer the matter to the B.C. Court of Appeal. fundamental challenges to the traditional, mo- While Oppal has subsequently requested yet nogamous definition of marriage.3 For example, another opinion from his ministry on whether it is true that the Supreme Court of Canada de- charges could be laid under a “more aggressive cisively rejected the government’s argument in approach,” it seems increasingly likely that the the SSM cases that the Canadian Charter of constitutionality of Canada’s anti-polygamy law Rights and Freedoms4 was not intended to revo- will soon be before the courts. lutionize fundamental social institutions. Re- cent developments in British Columbia appear The purpose of this article is to canvass likely to put this contention to the test. the legal issues such a case will raise based on current Charter jurisprudence.6 The analysis For over six decades, a fundamentalist sect will reveal two key points: first, and contrary of the Mormon Church has been practicing po- to some conservative commentary, the recent lygamy in the insular community of Bountiful, decisions legalizing SSM do not ultimately British Columbia, which now boasts a popula- benefit polygamists; and second, despite this, tion of roughly 1,000. This practice has been the courts will have a difficult time upholding permitted by successive provincial governments the ban unless they embrace feminist critiques of all partisan stripes, despite the fact that sec- of polygamy. In this article I quickly summa- tion 293 of the Criminal Code5 unequivocally rize the key decisions on SSM, provide a short prohibits polygamy. In recent years, the B.C. backgrounder on Bountiful and the practice of government has been advised by its own Min- polygamy, and then conclude with the analysis istry of Attorney General, and most recently by of Charter issues raised by polygamy, including a special prosecutor assigned to the issue, that equality rights, freedom of religion, and liberty. prosecution—and the ban on polygamy itself— It should be stressed, however, that while the would probably not survive a freedom of reli- situation in Bountiful is the one most likely to gion claim under the Charter. The special prose- bring the polygamy issue to the courts and is Constitutional Forum constitutionnel 89 my focus here, any ruling will have implications characteristics, or (b) fail to take into ac- far beyond this small community in rural B.C. count the claimant’s already disadvantaged Polygamy is advocated (and quietly practiced position within Canadian society resulting in Canada) by some ultra-Orthodox Jews and in substantively differential treatment be- Muslims, and the latter group is of particular tween the claimant and others on the basis relevance as Canada continues to accept more of one or more personal characteristics? immigrants and refugees from Muslim coun- tries where Islamic Sharia law accepts the prac- B. Is the claimant subject to differential treat- tice. In short, in addition to raising the issues of ment based on one or more enumerated and religious freedom and the equality rights of reli- analogous grounds? gious minorities, polygamy may present a clash C. Does the differential treatment discrimi- between multiculturalism—recognized in sec- nate, by imposing a burden upon or with- tion 27 of the Charter—and Canadian criminal holding a benefit from the claimant in a law, as well as sexual equality as enshrined in manner which reflects the stereotypical sections 15 and 28 of the Charter. application of presumed group or personal characteristics, or which otherwise has the The Same-Sex Marriage Rulings effect of perpetuating or promoting the view that the individual is less capable or With their respective rulings in EGALE and worthy of recognition or value as a human Halpern in the spring of 2003, the Courts of Ap- being or as a member of Canadian society, peal in B.C. and Ontario became the highest- equally deserving of concern, respect, and ranked courts in the country to conclude that consideration? gay and lesbian couples have a constitutional right to be married in law. Some churches, most Framed in these terms, the courts readily notably the Metropolitan Community Church conceded that the common law-definition of of Toronto, had already performed purely reli- marriage discriminated against gays and les- gious marriage ceremonies for members of its bians. The law clearly distinguished same-sex congregation. The courts’ decisions meant that couples from heterosexual ones, and denied these would now be legally recognized, and that homosexual unions the legal benefits of mar- civil marriage ceremonies would now be open riage (and associated protections, when those to same-sex couples. The cases turned primar- unions dissolve). While the wording of section ily on the claim that gays and lesbians’ equal- 15 does not specify protection for sexual ori- ity rights in section 15 of the Charter were entation, the Supreme Court used the section’s violated by the common-law definition of mar- open wording to recognize it as an “analogous riage. Although the institution of monogamous ground” deserving protection in the 1995 Egan 9 heterosexual marriage had existed for several v. Canada decision. As recognized in Egan, centuries in the Anglo-American context, the gays and lesbians make up a historically disad- common-law definition, as of Spring 2003, dat- vantaged group which has long suffered under ed back to the 1866 British case Hyde v. Hyde deep-seated discriminatory attitudes in Cana- and Woodmansee: “marriage, as understood in dian society. These attitudes were manifested in Christendom, may for this purpose be defined the criminal law (in particular in the prohibi- as the voluntary union for life of one man and tion on “sodomy”); in discriminatory treatment one woman, to the exclusion of all others.”7 by employers and landlords; and, of course, in the body of family law relating to marriage, Following Law v. Canada,8 a successful spousal support, custody, adoption and next-of- equality rights claim has to answer all of the fol- kin relations. On the question of whether bar- lowing questions in the affirmative: ring same-sex marriage is based on discrimina- tory stereotypes of gays and lesbians, the courts A. Does the impugned law (a) draw a formal were unequivocal: distinction between the claimant and oth- ers on the basis of one or more personal Same-sex couples are capable of forming 90 Volume 16, Number 2, 2007 “long, lasting, loving and intimate relation- case on all counts. Even allowing the objectives ships.” Denying same-sex couples the right to of promoting procreation and child rearing, pre- marry perpetuates the contrary view, namely, venting same-sex marriage does nothing to en- that same-sex couples are not capable of form- courage reproduction by heterosexual couples, ing loving and lasting relationships, and thus and an increasing number of same-sex couples same-sex relationships are not worthy of the are having and raising children. Moreover, the same respect and recognition as opposite-sex relationships.10 law completely excluded same-sex couples from a fundamental societal institution, and “com- Finally, the courts found the exclusion plete exclusion cannot constitute minimal im- simply unnecessary, rejecting the federal pairment.”13 Absent a justifiable rationale for government’s argument that “The concept of prohibiting SSM, the courts lifted the ban. marriage—across time, societies and legal cul- tures—is that of an institution to facilitate, shel- Notably, in Halpern, the pro-SSM Met- ter and nurture the unique union of a man and ropolitan Community Church of Toronto woman who, together, have the possibility to (MCCT) made the additional argument that bear children from their relationship and shel- denying the Church the right to perform legally ter them within it.”11 As even the Attorney Gen- recognized marriages violated its freedom of eral of Canada acknowledged, procreation and religion under section 2(a) of the Charter. This child rearing are not the only purposes of mar- claim proved unsuccessful. The Ontario Court riage—others include intimacy, companionship, of Appeal’s view was that although “marriage societal recognition, economic benefits, and the is a legal institution, as well as a religious and blending of two families—and both the Ontario a social institution,” the SSM case was “solely and B.C. courts observed that same-sex couples about the legal institution of marriage. It is not can choose to have children through adoption, about the religious validity or invalidity of vari- surrogacy, and donor insemination. Conversely, ous forms of marriage. We do not view this case as, in any way, dealing or interfering with the heterosexual married couples are not required 14 to have children. religious institution of marriage.” In short, be- cause the MCCT could perform religious mar- For essentially the same reasons, the courts riage ceremonies for gays and lesbians—even if ruled that the government failed to demonstrate they were not legally recognized—the Church’s that the violation was justified under section 1 religious freedom was not violated. Conversely, of the Charter, which permits “reasonable lim- and as confirmed by the Supreme Court in the its” to be imposed on Charter rights: subsequent Reference re Same-Sex Marriage,15 the Charter’s protection of freedom of religion The Canadian Charter of Rights and Freedoms means that churches that are doctrinally op- guarantees the rights and freedoms set out in posed to homosexuality cannot be forced to it subject only to such reasonable limits pre- perform or recognize SSMs. scribed by law as can be demonstrably justified in a free and democratic society. What, then, are the implications of these Following the formulation laid down in R. findings for polygamists? v. Oakes,12 the government must show that the violation of a right is for a “pressing and sub- Polygamy: Some Background stantial objective” using “proportional” means, where the latter requires demonstrating that a The practice of polygamous or plural mar- “rational connection” exists between the objec- riage in Bountiful is based on a literalist read- tive and the means used, that the “reasonably ing of the Old Testament, which features many least restrictive means” were used (“minimal examples of men taking multiple wives, and on impairment”), and that the collective benefit of Mormon founder Joseph Smith, Jr.’s revelation the objective outweighs the cost to the individ- that only men with three or more wives can ual whose rights have been violated. The courts reach the highest realm of heaven. (Sect mem- found that the government failed to make its bers also believe that the “prophet” or church Constitutional Forum constitutionnel 91 elders should determine which man a woman Polygamy and the Charter in Court will marry). This raises a matter of terminol- ogy, as what is practiced by residents of Bounti- ful—as with most other practitioners of plural Equality Rights marriage, including some ultra-Orthodox Jews If SSM is supposed to be a slippery slope to and some Muslims under Sharia law—is more polygamy, it stands to reason that our analysis accurately labelled polygyny, or taking multiple should begin with equality rights, which formed wives, since all of the plural marriages involve the basis of the successful claims in EGALE a single man with multiple wives, rather than and Halpern. How well would those precedents the reverse (polyandry) or a mix of many men serve the residents of Bountiful? and women (polygamy, in its strict usage). How- ever, for simplicity, I will use the more familiar The short answer is not particularly well. term “polygamy” throughout to refer to all of That is not to say that polygamists cannot suc- these permutations. Polygamy has been ille- cessfully claim protection under section 15, but gal in Canada since before Confederation, first as I will explain, the claim rests on grounds that under British common law (Hyde v. Hyde and have nothing to do with gays and lesbians. Re- Woodmansee) and then in our first Criminal calling the standards established in Law, polyg- Code, adopted in 1892. The current prohibition amists actually have a fairly strong claim that is found in section 293 of the Criminal Code, section 293 of the Criminal Code discriminates and reads as follows: against them. Section 293 certainly makes a dis- tinction between polygamy and other forms of 293. (1) Every one who marriage by criminalizing the former, and does (a) practises or enters into or in any so on the basis of a “personal characteristic,” in manner agrees or consents to this case marital status. Moreover, while sec- practise or enter into tion 293 does not mention religion, it nonethe- less treats the religious community of Bountiful (i) any form of polygamy, or (and of polygamous Muslims and Jews) differ- ently from religious groups which practice mo- (ii) any kind of conjugal union nogamy. with more than one person at the same time, whether or Similarly, as to the question of whether this not it is by law recognized as a differential treatment is based on one or more binding form of marriage, or enumerated and analogous grounds, there are at least two different grounds upon which polyga- (b) celebrates, assists or is a party to mists could answer in the affirmative (neither a rite, ceremony, contract or con- of which is sexual orientation). The first is the sent that purports to sanction a enumerated ground of religion, which to date relationship mentioned in sub- has never been successfully claimed in the Su- paragraph (a)(i) or (ii), preme Court of Canada. This does not preclude is guilty of an indictable offence and li- success, however, as previous claims of religious equality failed in cases where the law had been able to imprisonment for a term not ex- 16 ceeding five years. enacted before section 15 came into effect, or where the claim was trumped by the right to de- Prosecutions under section 293, however, are nominational schooling enshrined in section 93 rare. of the Constitution Act, 1867.17 There is a chance the Court could rule that polygamists are be- ing discriminated against not because of their religion but because of a particular practice, but this seems unlikely as the very basis for this sect’s schism from the larger Mormon Church was its position on polygamy. 92 Volume 16, Number 2, 2007 A second potential ground is “marital as an analogous ground? If we bracket out the status,” which was accepted as an analogous religious basis for polygamy, what remains is an ground in Miron v. Trudel18 and Nova Scotia (At- equality rights claim based on a socially derided torney General) v. Walsh.19 Although it is likely and criminalized but ultimately voluntary act— that a court would simply accept an argument plural marriage—rather than an immutable that the precedent regarding marital status as characteristic which is irrelevant to the law in an analogous ground applies to polygamy, it is question. This strikes me as extremely similar worth noting that there are some significant to the argument advanced unsuccessfully by differences between these cases and polygamy. the pot smokers in Malmo-Levine. As such, the Miron and Walsh arose because of differences real issue for polygamy in the context of section in the way the law treated unmarried but mo- 15 should be religious discrimination (and, just nogamous common-law spouses as compared for fun, we can make another analogy to drug to married couples. In Walsh, the court upheld use: if the colonists in Bountiful can make an the distinction that common-law spouses do equality rights claim to polygamy based on reli- not automatically receive half of any “matri- gion, why can Rastafarians not make an equal- monial” property in case of separation. As well, ity rights claim to possess and smoke marijuana these marital status cases concerned civil law based on its centrality to their religious prac- (provincial car insurance in Miron, family law tices? Just a thought). in Walsh), while polygamy arises in the context of criminal law. All of this is to say that polygamists would probably be able to establish a prima facie viola- Finally, regarding the issue of whether tion of their equality rights. Their claim would section 293 offends the human dignity of po- still need to survive a section 1 reasonable lim- lygamists as required by the third prong of the its analysis, which I take up after considering a section 15 test laid down in Law v. Canada, po- Charter claim based on freedom of religion. lygamy is viewed with moral opprobrium by the majority of society, which is the reason it was criminalized in the first place. There is no doubt Freedom of Religion that this prevailing attitude, and its embodiment As polygamy in Bountiful is based on reli- in the Criminal Code suggests that polygamists gious beliefs, the most obvious constitutional are “less capable or less worthy of recognition or challenge would be based on the Charter’s sec- value as human beings or as members of Cana- tion 2(a) “freedom of conscience and religion.” dian society, equally deserving of concern, re- To begin, the claimants would need to show that spect, and consideration” pursuant to part three polygamy is essential to their religious beliefs. It of the Law test. As such, section 293 clearly vio- is unlikely that the courts, which have taken a lates the dignity of polygamists in the terms laid “broad, purposive approach” to the prime facie down in Law. scope of rights, would reject this claim. While Before proceeding, it is interesting to com- the mainstream Mormon Church, under threat pare the polygamists’ section 15 claim with that of prosecution in the U.S., officially disavowed of recreational pot smokers, whom the Supreme Joseph Smith’s position on polygamy in 1890, Court rejected as an analogous ground in R. v. the group in Bountiful (among others) broke Malmo-Levine and R. v. Caine.20 Let us assume away largely because of this issue. The group for the moment that both the drug users and also has textual support from the Bible and polygamists are guilty of what Herbert Packer past practice, as monogamy was only adopted termed consensual or “victimless crimes,” in in Christendom because of Roman influence, which their actions cause no harm to others.21 and other religions with roots in the Old Testa- Both groups have seen their behaviour pro- ment—including some Jews and Muslims, and hibited based on the majority’s moral values,22 other Mormons—practiced or still practice po- but absent the precedents in Miron and Walsh, lygamy. would the marital status of polygamists qualify As such, polygamists are likely to have more Constitutional Forum constitutionnel 93 success at this stage than the Metropolitan its” analysis—in short, the prima facie right to Community Church had in Halpern. In large act upon a religious belief would be narrower measure this is because the courts do not have than the right to hold that belief. However, in the same “out” here of allowing purely religious each case a majority of the Court (albeit nar- ceremonies, as even exclusively religious plu- rowly) refused to employ this approach, opting ral marriage is prohibited. Recall the Criminal instead to read the right broadly, in keeping Code’s section 293(1)(a)(ii), mentioned above, with the Court’s “living tree” philosophy, and which prohibits “any kind of conjugal union work out the conflicting principles in the con- with more than one person at the same time, text of section 1. whether or not it is by law recognized as a bind- ing form of marriage” [emphasis added]. No- A second lesson from the transfusion and tably, if one tried to argue in defence of po- custody cases is that the Court uses this ap- lygamy that the second and subsequent unions proach of interpreting rights broadly and han- were not “conjugal”— that is, they were celi- dling limitations of those rights under section bate—section 293(2) makes it clear that it is not 1, even if the case involves adults making deci- necessary “to prove that the persons who are sions affecting minors, which is the case with alleged to have entered into the relationship respect to polygamy. Children have no control had or intended to have sexual intercourse.” In over whether they are born into polygamous any case, this is hardly an issue in Bountiful, families, with all the negative consequences where one of the community’s leaders, Win- that that may entail. These consequences in- ston Blackmore, has over 100 children by his clude, according to studies commissioned by 30 wives. Status of Women Canada and the Department of Justice Canada26: the unclear legal status Assuming that polygamists clear this ini- of children of illegal marriages (which affects tial legal hurdle, they would still need to ad- inheritance, custody, support payments, etc.), dress the Court’s well-established position that possible psychological damage, economic de- the freedom to hold religious beliefs is distinct privation, lower levels of academic achieve- from the right to act on those beliefs. On its ment and self-esteem and, in the case of Boun- face, it is hard to see how such a distinction tiful, probably sexual abuse. So, even though could be made in this case; it seems unintel- there are competing principles at play here ligible to suggest that religious freedom pro- (more about these below), the Court’s track re- tects the right to believe in polygamy but not to cord suggests that it would not block the rights practice it. The closest parallels, in which reli- claim at this stage. gious belief required a particular course of ac- tion contrary to state regulations, are the blood As such, the case law suggests that the resi- transfusion23 and child custody cases24 involv- dents of Bountiful would meet their burden ing Jehovah’s Witnesses. These cases hold of showing a prima facie violation of religious some important lessons for polygamists. First, freedom, thus putting the onus on the govern- in all of these cases the Supreme Court consid- ment to demonstrate why limiting their reli- ered whether countervailing principles—the gious freedom is reasonable under section 1. “harm” principle, or the “best interests of the As the government’s argument could be virtu- child”—provide internal limits to the freedom ally identical to that offered for a violation of to act upon religious belief. In other words, equality rights, a single analysis of section 1 echoing John Stuart Mill’s classic formulation issues will suffice. in On Liberty,25 the Court asked whether one’s enjoyment of a right extends only to the point Reasonable Limits under Section 1 where it interferes with the ability of others to do the same? If so, and if such interference could be shown, then there would be no prima Limit “Prescribed by Law” facie rights violation, and so there would be no The first step in section 1 analysis requires need to engage in a section 1 “reasonable lim- verifying that the rights violation is “prescribed 94 Volume 16, Number 2, 2007 by law.” This is self-evident here, as it is a provi- bigger picture, which is the highly indoctri- sion of the Criminal Code which is at issue with nating context in which these youths live. respect to polygamy. As a report for Status of Women Canada by the Alberta Civil Liberties Research Centre 30 Pressing and substantial objective observes, the children of Bountiful are in- doctrinated against discussing any sexual Although the origin of the anti-polygamy abuse they experience, and indeed, are dis- law is rooted in enforcing mainstream Judeo- couraged from even recognizing it as abuse Christian morality through the criminal law, as it is framed as obedience to their leaders this is typically no longer a legitimate objective who are God’s prophets on Earth. Prosecu- in the eyes of the courts, given Canada’s multi- tion of sexual offenses without the assis- cultural and liberal democratic character. This is tance of the victim is extremely difficult, evident in cases concerning pornography27 and and virtually impossible if the victim and “swingers” clubs,28 which ruled out traditional their family actively frustrate the Crown’s morality-based justifications for the crimes of, efforts. respectively, obscenity and indecency, in favour 2. Child protection more generally, based on of a “harm-based” approach. A majority of the the factors cited above (uncertainty over Supreme Court in Malmo-Levine maintained their legal status, economic deprivation, that morality could be the legitimate basis of psychological harm, etc.). criminal law in narrow circumstances, when it reflects societal values “beyond the simply pru- It should be noted at this point that if either rient and prudish” rather than “conventional or both of these objectives for the prohibi- 29 standards of propriety” or current tastes. tion of polygamy are the only objective(s) Justices Gonthier and Binnie, writing for the the Court accepts, it opens the door a crack majority, identified bestiality, cannibalism and to polygamists who do not have children consensual dueling as examples—but not, no- (elderly couples, for example). However, it is tably, polygamy. Moreover, as noted, polygamy unlikely that such a narrow concern would today is not universally condemned among the prevent the Court from upholding the ban cultural communities within Canada, nor is it in its entirety. without historical precedent. As such, it is un- likely that a strictly morality-based objective for 3. Promoting sexual equality. In their study the prohibition would be accepted by the Court. for the Department of Justice, Rebecca What, then, would be a liberal, harm-based ob- Cook and Lisa Kelly31 lay out several ways in jective for prohibiting polygamy? The Court which polygamy, as practiced in Bountiful would have several to choose from, but all are and elsewhere in the world, harms women somewhat problematic: and undermines sexual equality. These in- clude: 1. Protecting underage girls from forced mar- riage and sexual exploitation. This argu- • as a form of patriarchy, polygamy is in- ment might be confounded somewhat by tended to control women and prevent the government’s inability to prosecute wives from asserting their interests and successfully any actual cases, even after ap- rights within marriage; pointing a special prosecutor to investigate the issue. Moreover, polygamy does not • denying couples sexual intimacy, which necessarily involve young girls, and minors “hinders the equal sharing of both ma- could arguably be protected in other ways, terial and emotional attention”; such as by prosecuting the offences of un- • fostering competition between wives derage marriage, sexual abuse, and/or other (although examples of close co-opera- sexual offences (sexual exploitation, sexual tion also exist) and unequal distribu- interference, etc.). On the other hand, rely- tion of domestic resources; ing on individual prosecutions misses the Constitutional Forum constitutionnel 95 • elevating levels of mental illness and it seems likely that the Court would accept the stress among wives; government’s claim that the ban on polygamy has a pressing and substantial objective, par- • aggravating deprivation and poverty; ticularly since the courts usually defer to the • undermining women’s enjoyment of government at this stage of analysis. Moreover, citizenship (including fundamental in Malmo-Levine, the Court characterized the political values such as freedom of ex- burden of proof on government to show a threat pression, freedom of assembly and asso- to vulnerable groups (or health) in the context ciation, the right to freedom of thought, of section 1’s “pressing and substantial objec- belief and opinion, and even the right to tive” analysis as “minimal.” In other words, vote); and the government should not have a particularly hard time satisfying this requirement in the po- • as a consequence of unequal power re- lygamy case. What, then, is the Court likely to lations based on gender, women and decide about the ban’s proportionality? adolescent girls are often unable to re- fuse sex or insist on safe and responsible Proportionality sex practices, exposing them to unsafe pregnancies, STDs and HIV/AIDS. i) Is there a rational connection? While this is highly speculative without knowing what These factors might carry particular objective the Court might accept, it does weight in the context of a violation of po- stand to reason that if Parliament believes lygamists’ equality rights, since it could be polygamy is the root of the problem, then argued that allowing polygamy offends the banning polygamy is a “rationally-connect- Charter’s section 15 guarantee of sexual ed” response. equality, as well as parallel guarantees in human rights legislation and international ii) Is the impairment minimal? As is usual in treaties to which Canada is a ratified sig- section 1 analysis, this is likely to be the natory. The objective of promoting sexual biggest obstacle for the government, espe- equality would certainly allow a comprehen- cially since there are ample precedents of sive ban on polygamy, but it does raise one the Court objecting to “total” prohibitions major concern: banning polygamy based on where more tailored ones might suffice the harm it does to women represents a fair- (take for example the cases regarding Que- ly invasive form of statist paternalism, as it bec’s sign law33 and tobacco advertising34). denies the agency of those women who nev- While it is true that a similar argument was ertheless want to participate in plural mar- employed in the SSM cases, the situation is riage. This concern is arguably attenuated subtly different from the ban on polygamy. by the fact that polygamy typically occurs In EGALE and Halpern, the courts argued in an extremely insular and indoctrinating that the “complete exclusion [of homosexu- context, which serves to constrain or deny als from the institution of marriage] cannot women’s agency in the first place. constitute minimal impairment.”35 Polyga- mists, in contrast, are not being completely 4. Preventing in-breeding. While this is a con- excluded from the institution of marriage, cern in highly insular communities like but being told to limit their involvement Bountiful, it is not inherent to plural mar- in that institution to only one partner at a riage. This said, the Nova Scotia Court of time. The minimal impairment analysis Appeal’s decision upholding the Criminal would also be the real test of the Court’s Code’s ban on consensual incest (section 32 ability to reconcile religious freedom with 155) in R. v. F. (R.P.) cited “the societal sexual equality (and/or child protection), or goal of reducing the chance of children be- whether the former must simply give way to ing born with genetic mutations.” the latter, in which case a total ban would be Notwithstanding the concerns I have raised, upheld. How the Court resolves this ques- 96 Volume 16, Number 2, 2007 tion has direct consequences for any poten- munities, in part to prevent any secular oppor- tial remedy, as will be discussed below. tunists from trying to rack up spousal pension benefits or RRSP room. A decision based on iii) Does the collective benefit outweigh the in- marital status, on the other hand, would re- dividual cost? Banning polygamy has some quire an even broader remedy, most likely the benefits for the non-polygamous majority, complete invalidation (either immediate or de- but they are mostly of the economic vari- layed) of section 293. Notably, this might cre- ety (imagine, for example, if Blackmore was ate favourable conditions for the government to able to claim Canada Child Tax Benefits for invoke the notwithstanding clause, as it would all 100 of his children). The more pressing likely face fairly little public backlash for retain- issue to the Court would be the presence ing the prohibition on polygamy. of any benefits that accrue to the children of polygamous marriages, as they cannot speak for themselves, and are too young to Right to Life, Liberty and have formed their own opinions about their Security of the Person religious beliefs. On this count, the Court would have sufficient grounds to find in the Before closing, I should note that some ar- government’s favour. guments against the ban on polygamy could arise from the Charter’s section 7 right to lib- erty, which the court has expanded beyond its Remedy initial “freedom from physical restraint” to in- If we were to assume for a moment that the clude government interference with a person’s Court did not find a complete ban on polygamy “fundamental personal choices.”37 As Bailey to be a reasonable limit on religious freedom, et al. aver, “it is difficult to conceive of a more this rights violation would be the easiest one to fundamental personal choice than whom one remedy, according to Martha Bailey et al.36 All chooses to marry.”38 Be that as it may, section 7’s the Court would need to do to satisfy religious wording indicates that the rights in that section freedom is read out of the Criminal Code the may be limited when doing so is “in accordance phrase in section 293(1)(a)(ii) prohibiting po- with the principles of fundamental justice.” The lygamy “whether or not it is by law recognized Charter does not specify these principles, and as a binding form of marriage,” thus allowing the Court has tended to focus on what does not purely religious ceremonies which have no sta- satisfy fundamental justice. The latter includes tus in law—indeed this is what the Court said vagueness in the law, lack of “fair notice” for was sufficient to satisfy the religious freedom of those subject to a law, and arbitrary application the pro-SSM Metropolitan Community Church of the law (i.e., too much discretion left to gov- in Halpern. This would also side-step the gov- ernment officials, especially if there is evidence ernment’s likely argument that legalizing po- of bias). The ban on polygamy suffers from none lygamy would wreak havoc on Canadian family of these defects. Anyone practicing polygamy law and government programs, all of which are is perfectly aware that they are violating the premised on the model of the monogamous (or Criminal Code, and “polygamy” is clearly de- single-parent) family. A successful claim under fined as the taking of more than one spouse at section 15, however, would require a more sub- a time, even if in a purely religious ceremony. stantial remedy than for a violation of section While there is obviously discretion involved in 2(a), and entail nullifying at least some part of deciding whether to prosecute, this is no dif- section 293 of the Criminal Code, though the ferent from the discretion Crown Attorneys grounds claimed under section 15 (religion ver- have over prosecuting any offence—moreover, sus marital status) would be relevant here. A the Court has ruled that this discretion is itself ruling based on religious discrimination could constitutionally protected except in cases of allow the courts, or a government in response “flagrant impropriety.”39 On the other hand, the to the ruling, to carve out an extremely narrow promotion of sexual equality and the protection exception for well-established religious com- of children are surely consistent with the prin- Constitutional Forum constitutionnel 97 ciples of fundamental justice. Thus, the same said to link polygamy and SSM is that the same- concerns which would justify limiting religious sex marriage cases illustrated that marriage, freedom in the context of section 1 would also as a state-defined and supported institution, justify internally limiting section 7, so a claim is subject to judicial review under the Charter, advanced under section 7 would face the same and that that definition cannot be grounded in calculus of success as a claim under sections mainstream Judeo-Christian religious doctrine 2(a) and 15. Having said this, a successful claim or morality. However, the fate of polygamy in under section 7 would require the same sort court is in no way wed (pardon the pun) to that of substantial remedy as required by a section of same-sex marriage. 15 claim based on marital status. This suggests that it would be inappropriate for the Court to cease their analysis of other rights claims if they Notes were to uphold the more narrowly remediable * Matthew Hennigar, Department of Political Sci- religious freedom or religious discrimination ence, Brock University. claims (which is the practice of many judges when facing multiple legal questions). 1 See, e.g., EGALE Canada Inc. v. Canada (At- torney General), 2003 BCCA 251, (sub. nom. Barbeau v. British Columbia (Attorney General), Summing Up 2003 225 D.L.R. (4th) 472 (CanLII) [EGALE] and Halpern v. Canada (Attorney General), [2003] 65 The foregoing analysis suggests that while O.R. (3d) 161 (C.A.) (CanLII) [Halpern]. Courts polygamists have strong prima facie claims in most other provinces subsequently recog- under multiple Charter rights, there are ample nized a right to same-sex marriage as well. The justifications available to the courts to rule any Supreme Court opinion in the Reference re Same- violations reasonable under section 1. The most Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 compelling of these come from feminist analyses (CanLII) [Reference] refused to address whether the common-law definition of marriage violated of polygamy as an inherently sexist institution the Charter. with important negative consequences for fe- 2 Stephanie Levitz, “Same-sex legal argument male family members, and youths in particular. won’t hold for polygamy” Toronto Star (3 August In reviewing the array of constitutional princi- 2007) A23. ples and precedents which may support a claim 3 See, e.g., Stanley Kurtz, “Beyond gay marriage” by polygamists, however, one fact is clear: none 8 (45) The Weekly Standard (4 August 2003), of these arguments are directly derived from Charles Krauthammer, “Pandora and polygamy” the same-sex marriage cases. Contrary to the The Washington Post (17 March 2006) A19, and Chicken Little-esque claims of some commen- REAL Women of Canada, “Address.” (Submis- tators, the most likely claims by polygamists are sion to the Standing Committee on Justice and based on religious freedom, liberty (since they Human Rights on same-sex marriage, 12 Febru- face criminal sanction), or their own unique ary 2003), online: 98 Volume 16, Number 2, 2007 same-sex unions until 2000 (see Modernization 22 Although one might argue that marijuana was of Benefits and Obligations Act, S.C. 2000, c.12, prohibited for some other reason, such as health s.1.1, and Federal Law-Civil Law Harmonization protection, the historical evidence suggests Act No. 1, S.C. 2001, c. 4, s. 5), as the common otherwise. See, for example, Catherine Carstairs, law definition was widely taken for granted, and Jailed for Possession: Illegal Drug Use, Regula- sodomy was still a crime until 1969. The statu- tion and Power in Canada, 1920-1961 (Toronto: tory measures adopted in 2000 and 2001 were University of Toronto Press, 2006) and Marcel not at issue in either case. Martel, Not This Time: Canadians, Public Policy, 8 Law v. Canada (Minister of Employment and and the Marijuana Question, 1961-1975 (Toronto: Immigration), [1999] 1 S.C.R. 497 at para. 39 University of Toronto Press, 2006). (CanLII) [Law]. 23 B.(R.) v. Children’s Aid Society of Metropolitan 9 Egan v. Canada, [1995] 2 S.C.R. 513 (CanLII) Toronto, [1995] 1 S.C.R. 315 (CanLII). The case [Egan]. Criticism of the Court’s expansive ap- concerned devout Jehovah’s Witness parents proach to s. 15 tends to ignore this basic fact who refused to consent to a blood transfusion about the section’s wording, which reads: “Every for their infant. When the Children’s Aid Society individual is equal before and under the law and secured a court order of temporary guardianship has the right to the equal protection and equal so the transfusion could be performed, the par- benefit of the law without discrimination and, ents challenged the order on the grounds that it in particular, without discrimination based on violated their and their child’s religious freedom. race, national or ethnic origin, colour, religion, 24 Young v. Young, [1993] 4 S.C.R. 3 (CanLII) and sex, age or mental or physical disability” [em- P.(D.) v. S. (C.), [1993] 4 S.C.R. 141 (CanLII). The phasis added]. It is quite clear that this phrasing issue in these cases was court-ordered custody does not restrict equality rights to the grounds arrangements which prevented the non-custodial enumerated at the end of the section. parent (the father) from disparaging the mother’s 10 Halpern, supra note 1 at para. 94. (Roman Catholic) faith or taking the children 11 Ibid. at para. 89. soliciting in public (such as door-to-door, a 12 R. v. Oakes, [1986] 1 S.C.R. 103 (CanLII). required part of mission work for Jehovah’s Wit- 13 Halpern, supra note 1 at para. 139. nesses); in both cases, the marriages had broken 14 Ibid. at para. 53. down largely because of religious discord. 15 Reference, supra note 1. 25 John Stuart Mill, On Liberty and Considerations 16 R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. on Representative Government, ed. by R. B. Mc- 713 (CanLII). Callum (Oxford: Basil Blackwell, 1946). 17 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, 26 Respectively, Angela Campbell et. al, Polygamy reprinted in R.S.C. 1985, App. II, No. 5. in Canada: Legal and Social Implications for Reference re Bill 30, An act to Amend the Educa- Women and Children – A Collection of Policy tion Act (Ont.), [1987] 1 S.C.R. 1148 (CanLII). Research Reports (Ottawa: Status of Women Can- Adler v. Ontario, [1996] 3 S.C.R. 609 (CanLII) ada, 2005), online: < http://www.swc-cfc.gc.ca/ [Adler]. While one constitutional provision does pubs/pubspr/0662420683/200511_0662420683_ not usually “trump” or outrank another, the e.pdf > [Polygamy] and Rebecca J. Cook & Lisa framers of the Charter anticipated this particular M. Kelly, Polygyny and Canada’s Obligations conflict and added s. 29, which explicitly pro- under International Human Rights Law (Ottawa: tects denominational schooling from Charter Department of Justice Canada, 2006), online: challenges. In light of this, I have always found Constitutional Forum constitutionnel 99 712 (CanLII), where the Supreme Court voided Quebec’s total ban on non-French outdoor com- mercial signage, but concluded that the “marked predominance” of French on such signs would meet Quebec’s objective of promoting and protect- ing the province’s French language and culture. 34 RJR-MacDonald Inc. v. Canada (Attorney Gen- eral), [1995] 3 S.C.R. 199 (CanLII), in which the Supreme Court vitiated the federal government’s complete ban on tobacco advertising in favour of a narrower ban on “lifestyle advertising.” 35 Halpern, supra note 1 at para. 139. 36 Martha Bailey, Beverley Baines, Bita Amani, and Amy Kaufman, “Expanding Recognition of For- eign Polygamous Marriages: Policy Implications for Canada” in Polygamy, supra note 26 at 29. 37 Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 144 [2000] 2 S.C.R. 307 (CanLII) at para. 54. 38 Bailey et al., supra note 36 at 30. 39 Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372 (CanLII). See also Lori Sterling & Heather Mackay, “Constitutional recognition of the role of the Attorney General in criminal prosecutions: Krieger v. Law Society of Alberta” (2003) 20 Supreme Court Law Review (2d) 169. 100 Volume 16, Number 2, 2007