!e 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 #rst constitu- with the provinces for the adoption of a Charter tional conference in an o$ce overlooking Was- of Rights. %e end product, with some modi#- cations, was indeed published in a 1968 position cana Lake nearly forty-seven years ago. I was a 1 young lawyer in the Department of the Attor- paper. In that year I went back to Ottawa on ney General of Saskatchewan. Prime Minister a full-time basis, eventually resigning my uni- Diefenbaker had announced that there would versity post and joining the public service. First be a Conference of Attorneys-General in early in the Privy Council O$ce, 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. %is this Act in the last twenty-#ve 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, a&er 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 #eld, Iraq: %ere 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. %is was constitutional reform. My #rst 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 !" Patriation %is debate continued periodically for the next sixty years in numerous federal-provin- %e 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. %e 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. %is accorded with the o( on any future legislative power over Canada. colonial nature of our status as a country, albeit %is 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 #rst 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. %ree 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. %e 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. %e Su- twentieth century, particularly a&er Canada’s preme Court ultimately said that it was legally distinguished role in the First World War, there correct in proceeding unilaterally. %e three was in this country a growing sense of Cana- provinces also asked if such a procedure was in dian nationhood. Indeed, a&er 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. %is position was agreed to inces in the Gang of Eight contended that no at the Imperial Conference of 1926. %e 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 “su$cient measure of provincial of amendments to our Constitution. %is was consent,” of which there was not here. Only On- at Canada’s request, and that request was made tario and New Brunswick supported the federal because we could not agree among ourselves as initiative.8 Not satis#ed with this, Quebec ini- to how we would amend our Constitution if the tiated an additional reference question arguing British didn’t do it for us. %e federal govern- that even if the agreement of every province was ment, eager to enhance national sovereignty, not required, by past practice and fundamental had been trying since 1920 to get agreement on principle at least the consent of Quebec was al- a domestic amending formula. %e basic issue ways required. %e Supreme Court heard and was always the same: under an all-Canadian rejected this argument.9 amending formula, how many provinces would have to agree with the federal government or A&er the Patriation Reference, in which the Parliament before proceeding with an amend- Supreme Court said that not unanimity but rath- ment to the Constitution? er a “su$cient measure of provincial consent”10 was necessary to bring about the constitutional
!' 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 a&er twenty-#ve in November 1981 to seek that su$cient 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 %is sug- other changes. Eventually all governments but gests that residents of Quebec believe that this Quebec came to agreement. %e 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 e(ected 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 “su$cient 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. %ey 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- “su$cient” if, as the Supreme Court had said, litical practice. If Quebec was humiliated, it was unanimity was not required. %at 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- %at 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. %ey 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 signi#cant constitutional amendment we could It may #rst 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-#ve 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 !) 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- #rmation 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 !e Charter obligation to promote such objectives.17 %e #rst I should begin by a$rming 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 a$rm 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. %e 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 %is 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. %e subject was not bene#cial 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. %is 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 #rst 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. %e 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 #nally 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 #cials were opposed to a constitutional bill of has come about by changes made to the dra& 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 !t of the law . . .” %e addition of various prep-
!* 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- bene#t” 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 speci#c services and hence the expenditure invalid if found to be discriminatory because of of public funds. a lack of equality in the bene#ts 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 bene#ts, 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 o(ending action or inac- iend v. Alberta. %ere 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. %e 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. %e 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 bene#ts 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 #nd 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. %e Supreme similar bene#ts to the deprived class of persons. Court simply could not contemplate the legisla- In e(ect, 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 identi#ed 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. %e Court %ose who dra&ed 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 o$cials, 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 bene#t” of the medical insurance law and it was otherwise constitutional, they consider unjust. the Court which decided what services should %at 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 !! 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 dra&s had used the term “due process.” %e 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 #nd 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 a&er the adoption of the Charter “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 %e 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 di(erent 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 #rst 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 e(ort 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. %ree 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 e(ect. 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. %us, the Court settled a long and highly substantive sense, a super#cial 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 a(ord private insurance mon law heritage that judges be free to refuse and who do not su(er from disabilities that to apply plainly worded statutes not otherwise would make them uninsurable, the right to have in con,ict with the Constitution, just because the faster and arguably better care that would
!+ 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. %ey 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 e(ected in section 35. %eir propos- because it would have the e(ect 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- %ese are some of the most important unfore- visers to try to work out a suitable text. %e one seen and I think unforeseeable of its interpreta- agreed upon was similar to the text which was tions. #nally 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 %e 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) %e existing aboriginal and treaty rights of the aboriginal peoples of %e text, essentially as mentioned above in Canada are hereby recognized and af- subsections 35(1) and (2) (the word “existing” #rmed. 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. %ere 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 e(ect, that we had not %ere was no such provision in the dra& achieved “a su$cient 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. %ere 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 !- 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 %ere 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 con#ned to 35(1). With these changes, and some others, the traditional uses of the land. %us, 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 (%is 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, clari#ed in say that we considered the outcome of section that case, was the weight to be given to evi- 35 to be largely unforeseeable. %is was one dence pro(ered 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. %is 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 identi#cation 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 di$cult task was a right must be based on a practice or cus- le& to the courts. Following are major areas of tom of the claimants’ ancestors, employed uncertainty apparent to us in 1982. before the time of #rst 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. %e practice or rights under “land claims agreements” custom must be shown to be distinctive of were, as these are, by de#nition, reduced to their culture, one which makes the culture writing. Even there, the language of some what it is.42 %us, some important markers of the old treaties is full of ambiguities and have been established for de#ning 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 e(ect of the “recognition” and “a$r- ish Columbia39 had been accepted, at least mation” of Aboriginal rights would be since in Ottawa, as the correct view of Aboriginal this section was not part of the Charter, sec- title. %is was a view of title based on oc- tion 1 of which “guarantees”43 the rights set cupancy and use by an identi#able group of out in it. But the courts soon con#rmed that, Indians prior to the Crown asserting sov- provided such rights were still “existing” as ereignty over the lands. So established, title of 17 April 1982, they could no longer be entitled a group to exclusive continuing oc- extinguished or severely impaired by gov- cupancy unless it had been extinguished by ernmental action. %is stands in contrast to the agreement of the relevant group, or by a the situation before 1982 when Aboriginal deliberate act of the competent government. land rights, at least, could be extinguished %is view was con#rmed by Delgamuukw by federal executive or legislative acts as
!. Volume 16, Number 2, 2007 long as a clear intention was shown to ef- as to who is a “Métis,” a group designated fect such extinguishment. Of course, both in section 35 as having specially guaran- before and a&er 1982, such rights could be teed rights. In various contexts in the past, extinguished with the agreement of the Ab- governments had been content for persons original community: this was normally a of mixed Aboriginal and European blood key element of the treaties, and was usually to identify themselves as either Indian or an element in lands claims agreements. Métis, usually dependent on which com- munity accepted them as members. %e Su- 4. Also, because section 35 is not part of the preme Court tackled this di$cult question Charter, the rights entrenched in it are not in R. v. Powley.50 %ere a group sought to subject to the provisions of section 1, which establish a site-speci#c Aboriginal hunting permits “reasonable limits” to Charter rights right. %e Court recognized them as Métis. if such limits are “prescribed by law [and] %e indicia adopted by the Court were that can be demonstrably justi#ed in a free and the claimants be of mixed ancestry, live in democratic society.” Nevertheless the courts an identi#able Métis community, and have have recognized, in e(ect, 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-speci#c and with a it involves only as much infringement as is su$cient 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) a&er the arrival of Europeans but must the subject of consultation with the rights- have “evolved and ,ourished prior to the holder group. Further, such control must be entrenchment of European control.” %e consistent with the federal Crown’s #ducia- 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 #shing 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 de#ne in 1982. right of self-government, a right which had %ese important strides in the jurispru- been o&en 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 e(ect of this thought unnecessary to dispose of the case. section was unknown. %is 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 de#nition of o&en asserted but seldom recognized without the term “Métis” as used in section 35. Sec- quali#cation. 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 identi#es 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. %e Supreme Court as- section 35 launched a novel exercise in the de#- sisted in the de#nition 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. %e fundamental both groups! But we had no legal guideposts purpose of section 35 was well stated by Chief
Constitutional Forum constitutionnel !/ Justice Lamer, in Van der Peet51: sus on the fact of patriation and the meaning of the rights it has entrenched. More speci#cally, 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 %e substantive rights which fall within the Court Martial Appeal Court of Canada. provision must be de#ned in light of this pur- %is article is based on a presentation delivered pose; the aboriginal rights recognised and af- in Regina on 24 May 2007, at a “Living Tree” #rmed 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.
%e 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 O$ce seen and unforeseen by the framers of the Con- of the Assistant Secretary of Defence (Public Af- stitution Act, 1982, I would #rst say that we fairs), 12 February, 2002. %e 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 e(ective 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 de#nitions 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 %irds 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 e(ect of guaranteeing Aboriginal rights, but A5. would not generally be surprised by the out- 13 (3 June 1987), online: %e Canadian Encyclo- come. pedia
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