The Charter, legislation, and the courts

Maxwell Yalden was Canada’s language commissioner from 1977 to 1984. In that position, he worked to reinforce language equality and the Official Languages Act, which celebrates its 40th anniversary this year.

He was also chief commissioner of the Canadian Human Rights Commission from 1987 to 1996, as well as serving for eight years as a member of the United Nations Human Rights Commission.

Yalden’s book Transforming rights: Reflections from the front lines was recently released by the University of Toronto Press. It draws on his extensive experience in rights work to provide a personal assessment of how issues of human rights and language rights have evolved over the past 40 years.

Below is an excerpt chosen by the author for Canadian Lawyer..

The Charter, legislation, and the courts

I have already discussed some of the achievements and failures of the Charter and federal legislation with respect to language rights. I have also suggested that, on the whole, fundamental freedoms — freedom of religion, for example, or free speech — are not threatened in contemporary Canada, and that it is for that reason that discrimination has been the major target of human rights legislation in this country.

Not that there never have been direct threats to vulnerable minorities. Obviously, and shamefully, there have been openly hostile actions in the past towards Jews, to take only one of the most egregious examples. And it remains the case today that anti-Semitism represents a real threat, though I should have thought a diminished one, despite numerous cases that are identified by B’nai Brith and others. Of course, the position of the State of Israel in the turbulent events in the Middle East has brought out different critics who are also sometimes accused of being anti-Semites. Doubtless some of them are, but there are others who are critical of Israel on grounds that have little or nothing to do with religious intolerance.

One might say much the same with regard to Canada’s Muslim population. This difficult situation is rendered more complex by considerations of race and colour, but some of the indignation on the part of other Canadians clearly relates more to unacceptable, violent behaviour outside Canada. The two should not be confused, just as evidence of violence or potential for violence on the part of some Muslims should not be generalized to the Muslim community as a whole.

As to freedom of speech, it appears to me that most Canadians would agree that they are not prevented from speaking their minds on virtually any subject. On the whole, it is only when one’s expressed beliefs clash with others’ that problems arise. What some call ‘hate speech’ is a good example. The right, as some see it, to freedom of sexual expression versus what others perceive as unacceptable pornography is another. But on the whole most Canadians are not involved with or bothered by any of these matters. Does that mean they are too passive to care? I do not think so. They are going about their business and hoping to be left in peace.

But societies are not judged by what ‘most people’ do or think. They must also come up to scratch on their treatment of minorities, racial or religious or those who diverge in other ways, by their sexual orientation, for example. Even single-interest groups that promote far-fetched, indeed objectionable ideas have a place in an open society. People must have a right in civil life to behave differently, provided they do not trample on others’ rights. And again, on the whole, I believe that contemporary Canadians are reasonably good at just that.

That it has not always been so, one might argue, is not relevant: continually revisiting the past serves no purpose. But of course it is significant, if only to help explain the background to all the huffing and puffing about rights in today’s Canada. And above all, the right to be free from discrimination that has occupied so much time and energy in the six decades since the Second world war. Beginning with provincial legislation on fair employment and accommodation practices, moving to general human rights legislation at both the provincial and federal levels, and finally to Charter guarantees, this has been a major part of the story of the rights movement in Canada during those years.

Perhaps the most prominent development at the federal level in earlier days was the Canadian Bill of Rights, launched in 1960 with much sincerity and with high hopes by the then prime minister, Mr. Diefenbaker. In the end, however, it was more of a failure than it probably ought to have been, with an ‘impact’ that was disappointing, because of confusion over whether the Bill could be overruled by later statutory pronouncements. Some observers have gone farther, condemning it as ‘not even a qualified success in protecting equality rights,’ and even more severely as resulting in a series of court decisions that ‘were more remarkable for their conservatism than for the cogency of their reasoning.’

Indeed, another commentator has argued that, ‘In large measure, it was dissatisfaction with the equality provisions of the statutory 1960 Canadian Bill of Rights that provided the impetus to an entrenched Charter.’ The Bill had resulted in some successes, notably in the Dry-bones case, but was generally a source of disenchantment, as the courts were basically not willing to use it to strike down other legislation. They chose rather to regard it as ‘concerned with … “rights and freedoms” as they existed in Canada immediately before the statute was enacted’ and were in this view ‘overly concerned with the supremacy of Parliament.’

Probably none of this is surprising, given the temper of the times and courts that were hardly likely to push an aggressive human rights dossier — on its face, a far cry from what some commentators condemn as what they call ‘activist courts.’ But perhaps less so on closer examination, for pre-Charter conservative judge-made law could be ‘activist’ in its own way. As, for example, in a 1939 case in which a court decision stated that freedom of commerce meant that a proprietor could refuse to serve a black person at the Montreal Forum. Or when the courts decided in 1975 that the non-financial contributions of a wife ‘were part of what she’s supposed to do as a wife without any compensation,’ and then overturned this view three years later. At the same time, in the period 1978 to 1981, the law in this area was also being refashioned in virtually all provinces in a manner that considerably improved prior legislation in those jurisdictions.

In any event, times change, and even the courts change with them, to a degree that the role of the courts vis-à -vis that of the legislature — the one elected, the other not — is often totally misunderstood. Except for those who regard the notion of a constitutional democracy as an oxymoron, it ought to be perfectly plain that the ultimate act of legislative sovereignty entails setting down fundamental principles in a constitutional framework. Not only is it usually agreed by a special process involving higher hurdles than ordinary legislation, but thereafter it cannot be changed except by equally exacting amending procedures. Further, it is the legislatures that explicitly give the power of interpretation to the courts. The Canadian people, through their elected representatives, have made these choices, and their continued approval of the Charter of Rights has been shown by opinion polls time and again since it was adopted.

Constitutional protections are particularly important in the defence of minority rights. Without them, the most vulnerable sectors of our society are continually open to the tyranny of the majority. They can of course be protected by legislation, but for many years they most certainly were not in Canada. And in any event ordinary legislation can be changed by ordinary legislators acting against the interests of minorities or at least failing to act in their defence.

Furthermore, in Canada as in most countries, there can be exceptions to both legislative and constitutional guarantees. Emergency measures in time of war are the most obvious example and are accepted in all countries and in international law, with a very limited range of exemptions for ‘non-derogable’ rights, such as the right not to be held in slavery or tortured. But ‘emergency measures’ in times of war or national catastrophes of one sort or another can unfortunately be given a very broad reading, and the magnificent language of the U.S. Constitution was of no more comfort to Americans of Japanese origin during the Second World War than was their situation in Canada without a written Charter of Rights at the time.

The present ‘war on terror’ presents another striking illustration of what can go wrong when panic sets in. The United States, of course, is the most egregious example, though by no means the only one. What has happened in the Guantanamo Bay detention cells or has been vividly shown in television images of Abu Ghraib Prison is totally inexcusable, by any criterion of international law, or indeed by domestic U.S. standards. Whether the focus is the humiliating treatment of prisoners or the requirements of a fair and timely trial, or principles to be respected in regard to enemy combatants (however they may be defined in the devious lexicon employed in public statements by American officials), it is clear that these actions are grossly inconsistent with U.S. commitments under the covenants on human rights and torture and the Geneva Conventions. As is deportation to countries with the death penalty or a record of torturing prisoners. However, sad as this truth may be, it is far from clear what can be done about it.

And finally, in Canada, we have provided a special bolthole to which legislators can escape if court decisions appear too confining. Known as the ‘notwithstanding clause,’ section 33 of the Constitution explicitly provides that a legislature may act to override certain sections of the Charter for a period of five years (renewable) when it deems it desirable to do so.

Only once, however, has this provision been used with respect to equality rights: in Quebec in December 1988, in respect of legislation relating to the language of signs, following a decision by the Supreme Court that Quebec’s French-only sign law violated the Charter right to freedom of expression. On that occasion, Premier Bourassa was quoted as saying that ‘using the notwithstanding clause to enforce a language policy goes against the traditional attitude of tolerance and openness shown by Quebeckers … It means suspending civil liberties pure and simple.’

But, with a slam at Mr. Trudeau, who ‘did not protect the section guaranteeing freedom of expression from the notwithstanding clause,’ he went on to conclude that he ‘was only following the law of the land.’ Be that as it may, the reaction in Manitoba was immediate: the following day, Premier Filmon called the Meech agreement into question, thereby leaving it open in due course to the procedural gambit that brought about its failure to pass the Manitoba legislature, and its ignominious demise, with which we are all too familiar.

I think it will be difficult to invoke the notwithstanding clause again on a rights-related issue. Especially in light of the Alberta government’s experience in the early months of 1998, when it twice considered using it (first in regard to limiting damages to be paid to victims of sterilization and then in reaction to the court’s decision regarding homosexuality in the Vriend case), only to decide against it in the end. A prudent political leader will think twice before risking allegations of indifference towards minorities. Perhaps the language issue in Quebec is unique in this respect, but I doubt that a federalist leader would move in this direction, and the separatists have bigger fish to fry.

A further significant point in all of this, however, is perhaps a more general one. The courts may diverge from time to time from the current of public opinion, but on the whole they have been cautious. Thus, for example, it was possible for the U.S. Supreme Court to defend the ‘separate but equal’ doctrine for many years in respect of American blacks. In the same time period, our own courts went along with restrictive covenants or other actions against blacks and Jews. During the McCarthy years, so called Communists were persecuted in the name of ‘national security’ in the United States with little censure from the courts, and while recent events have brought judicial criticism, the courts have yet to put a stop to them. Despite the exaggerations of the press, judges are not oblivious to what is going on around them, and they are not revolutionaries.


The fact is that widespread allegations of unacceptably ‘activist’ courts are largely the stuff of urban legend, at least in Canada. An activist court decision, as far as I can see, is a judgment one does not approve of; if one does approve, the court has shown good sense or proper deference to the legislature. Or as Madam Justice Rosalie AbelIa has put it, ‘what has changed is not what judges do, but how what they do is described by people who do not like their decisions.’

Often enough regarding the same decision, especially from the Supreme Court of Canada, we have academic and media commentators firing from the sidelines in all directions at once. The court has gone too far (it is ‘arrogant’ as the Globe and Mail put it about one judgment). Or it is pusillanimous and has not gone far enough. Or it has got it more or less right, but the question is one that should really have been left to Parliament. The fact is that we have a realistic group of individuals on the Supreme Court who have on the whole produced sensible decisions on difficult and complex problems that are not of their own making but have been handed to them by the federal and provincial legislatures.

As a result, even with all the constraints surrounding their activities, the courts have unquestionably played a major role in advancing the human rights dossier. Of course, they have not been working in a vacuum — federal and provincial legislation and eventually the Charter were essential construction blocks. But without the courts, the master builder would have been missing.

At the same time, rather curiously, the history of court action has at times been a patchwork affair, markedly conservative for many years, and coming round only rather slowly to a more rights-oriented approach. One might compare, for example, the Supreme Court’s antediluvian decision in the 1979 Bliss case, where it was held that denying unemployment insurance (UI) to a pregnant woman was not discrimination because ‘any inequality between the sexes in this area is not created by legislation but by nature’ and any ‘differential treatment was of pregnant persons, not women.’ A decade later, this reasoning was overturned in a decision written by Chief Justice Dickson, on the grounds that it was the UI legislation, not ‘nature,’ that was discriminatory, with explicit recognition of ‘pregnancy discrimination as an obvious case of sex discrimination.’

Other ‘conservative’ or at least not rights-oriented decisions, as I see them, were handed down, for example, in the Bhinder case in 1985, where the Supreme Court held that it was acceptable to require that hard hats be worn on CNR work sites, rejecting allegations of discrimination by a Sikh whose religion required him to wear a turban. This judgment was effectively overturned five years later in a landmark decision setting out the requirements for ‘reasonable accommodation’ of minorities.

In yet another decision, in a 1990 age discrimination case, the court held that mandatory retirement was not unconstitutional, interestingly enough with a dissent by Madam Justice Wilson (with whom I entirely agree) that such treatment was ‘an affront to the individual.’ In any event, in various instances, including the Government of Ontario, for example, the issue has been bypassed, as the authorities have moved on their own to remove mandatory retirement from the statute books.

Or again, in a language case that I have mentioned above, where a decision was handed down by the Supreme Court, to the effect that, although proceedings involving a French-language minority individual had to be bilingual, the judge did not necessarily have to understand the proceedings. Nine years later, this judgment was also overturned.

And finally, a more recent case concerning an allegation of religious discrimination in education in Ontario, involving a father who had had to pay to have his children educated in the Jewish faith, was ultimately taken to the UN Human Rights Committee, and is discussed below in that context. Suffice it to observe here that the Supreme Court of Canada had earlier ruled that the existing arrangements were not unconstitutional. In so doing, it chose to give greater weight to a 125-year-old constitutional text on guarantees to Roman Catholics in that province than to modern-day anti-discrimination commitments, both in the Charter of Rights and in international instruments to which Canada is a party.

On the other side of the ledger, there are any number of instances in which the Canadian courts have advanced the cause of human rights, beginning with what Irwin Cotler has called the ‘historic trilogy’ of cases dealing with free speech and whether ‘incitement to religious hatred is protected speech …’ In that context, the author cites then Chief Justice Dickson’s important observation to the effect that restrictions on hate speech do not ‘compromise the values of free speech.’

Or consider the Supreme Court’s decision in Singh, where it confirmed that the Charter provides that any individual in Canada, not just citizens or legal residents, enjoys the same rights to a fair hearing. Much to the chagrin, it might be added, of those who believe in playing ‘tough’ with refugee claimants and asylum seekers, who ‘use’ the courts to drag out their stay in Canada interminably.

Or turning to discrimination, the O’Malley case, regarding Seventh day Adventists and the right to work on Sunday; the Andrews case rejecting the requirement of citizenship to be a member of the bar; the Egan case with respect to homosexual rights; the Eldridge case where, contrary to the British Columbia Court of Appeal, the Supreme Court held that the fact that the state was not the cause of a disability did not absolve it from dealing with the effects and providing suitable remedies. And finally, other cases dealing with sex discrimination and sexual harassment.

On the whole, this is an impressive list in anyone’s book; but it is not the whole story.

Excerpt courtesy of University of Toronto Press.

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