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Brian Bird: The Charter at Forty: The future of Canada’s Charter

Commentary

2022 marks a major milestone for Canada: the 40th anniversary of the Constitution Act, 1982. This statute, which took effect on April 17, 1982, secured three major milestones for Canada.

First, it transferred full care and control over the Canadian Constitution from the United Kingdom to Canada. Second, it adopted a set of rules by which Canada could amend its Constitution. Third, it embedded a bill of rights, the Canadian Charter of Rights and Freedoms, into the Constitution. Barry Strayer, an esteemed Canadian jurist and one of the architects of the changes to our Constitution in 1982, aptly called this moment a constitutional revolution.

To mark this anniversary, I propose to make a whistle-stop journey through Canada’s constitutional history. This journey, which will finish in April to coincide with the anniversary of the Constitution Act, 1982, will have four stops: our constitutional landscape before 1982, how 1982 came about, the story after 1982, and the future of the Canadian Constitution.

The 40th anniversary of Canada’s constitutional revolution is an ideal moment to undertake what is a worthy endeavour at any time. In a society ruled by law, the portion of our law that governs all state action is of fundamental significance. The Constitution creates and sustains the basic features of Canadian society. It shapes our daily lives far more than we appreciate.

We only stand to benefit by deepening our knowledge of our Constitution. In doing so we will surely deepen our knowledge of Canada—a country that, though imperfect, merits affection and admiration. One might even say that, by learning about the law that constitutes Canada, we will grow in “true patriot love” for this remarkable country.

Part IV: The Charter’s Future

Part III of this series offered a snapshot of how the Charter has profoundly shaped Canadian society over four decades.The Charter at Forty: How the Charter has shaped society since 1982 https://thehub.ca/2022-04-18/charter-at-forty-how-canadas-charter-has-shaped-society-since-1982/ There is no reason to think that the next four decades will be any different. In the final part of this series, I share a few thoughts on the uncharted waters to which the Charter may lead us.

Even after 40 years, several provisions of the Charter have been either partially or entirely forgotten. Among the “fundamental freedoms” in section 2 of the Charter, several await meaningful judicial consideration.The Charter’s forgotten fundamental freedoms https://policyoptions.irpp.org/magazines/june-2020/the-charters-forgotten-fundamental-freedoms/ Freedom of conscience, freedom of thought, and freedom of peaceful assembly have largely gathered dust since 1982. Other provisions of the Charter have arguably been under-interpreted. Freedom of association, for example, has been confined to the collective bargaining context. In the years to come, new ground may be broken on these and other Charter guarantees that have been neglected or underdeveloped.

In addition to forgotten rights and freedoms, there are also many forgotten foundations of the Canadian Constitution—bedrock principles and ideals that sustain and animate the Constitution—that call for excavation. One example is the concept of a “free and democratic society,” a phrase that appears in the first section of the Charter. Section 1 “guarantees” the rights and freedoms found in the Charter and says that they are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Section 1, in other words, both activates the rights and freedoms in the Charter and articulates the standard by which they can be curtailed by state actors.

Section 1 may be the most consequential provision of the Charter. Many landmark Charter cases turn not on whether the right or freedom at stake has been limited by governments, but on whether the limit is justifiable. Even so, certain aspects of the text of section 1 have been insufficiently treated by courts and scholars—and the “free and democratic society” phrase may take top prize in that regard.

The most extensive judicial treatment of this phrase occurred in R. v. Oakes (1986), the leading Supreme Court ruling on section 1. The reflections of Chief Justice Brian Dickson in Oakes on the basic ingredients of a “free and democratic society” are worth quoting in their entirety:

Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.

Limits on Charter rights and freedoms must be compatible with the nature and demands of a free and democratic society. Cultivating and then applying a nuanced understanding of this concept is especially important when courts are called upon to adjudicate cases that feature a collision of rights. In Oakes, Chief Justice Dickson identifies what might be termed “robust pluralism” as a cornerstone of a free and democratic society. It is arguable that this vision of pluralism, one which makes ample space for diversity and difference, has been unevenly affirmed in Charter jurisprudence. Our understanding of a “free and democratic society” in the context of evaluating limits on Charter rights and freedoms remains under construction.

Another construction zone for the Charter is the so-called “notwithstanding clause” in section 33. This clause permits legislatures to enact laws that effectively bypass certain rights and freedoms guaranteed by the Charter. The notwithstanding clause has been a political lightning rod from even before the ink dried. An unabashed political compromise to pacify certain provincial governments of the day, Pierre Trudeau opposed the clause because of the threat he perceived it posed to the project of entrenching rights and freedoms within the supreme law of Canada. The silver lining, however, has been the deep reluctance of governments to use the clause due to the political costs of muting Charter rights and freedoms.

But this silver lining has faded in recent years, as the notwithstanding clause has come to be used more often by provincial governments. The current litigation over Quebec’s Bill 21, a law that forbids certain public servants from wearing religious symbols at work, may require the Supreme Court to determine how ironclad the notwithstanding clause truly is. At a first glance, Quebec should prevail on account of having invoked section 33 when it enacted Bill 21. Owing to the use of section 33, Quebec has argued that any Charter claims of religious freedom, freedom of expression, equality, or other guarantees captured by section 33 should fail.

But what if the Constitution guarantees civil liberties like freedom of religion and freedom of expression in constitutional spaces apart from the Charter? In opposition to Bill 21, some have argued—by pointing to Supreme Court rulings and our constitutional inheritance from the United Kingdom—that these and other basic protections found expression in the Constitution prior to the Charter, and that the notwithstanding clause (which only operates on certain Charter rights and freedoms) does not necessarily affect these guarantees. The intriguing question of whether the Charter covers the field of rights protection in the constitutional sphere merits consideration by the Supreme Court. The robustness of the notwithstanding clause, the most controversial aspect of the Charter, is poised to be determined in the years to come.

Finally, there is the matter of which social and policy issues will take centre stage in Charter litigation in the years and decades to come. Making predictions of this sort might seem futile given that many of the issues that have featured in Charter litigation of the past 40 years were unfathomable as of 1982. I find it hard to imagine that many Canadians foresaw the Charter being argued in cases about euthanasia, prohibitions on private health care, and same-sex marriage—to name only a few issues.

Even so, it seems plausible to predict that issues like digital privacy and other matters related to technological advances will loom large in Charter litigation of the not-so-distant future. The same can be said of the major challenges we face as a society and as a planet, such as reconciliation and climate change. The question of how we ought to manage the inevitable tensions and disagreements that occur within a plural society will continue to knock on courtroom doors. The litigation over Quebec’s Bill 21 is a prime example.

And certain issues that have already generated landmark rulings will likely return to the Supreme Court again. In 2007, the Court considered a ban on private health care in Quebec; the Court may have the opportunity to consider the issue again in a case emanating from British Columbia.B.C. Supreme Court rules against legalizing private health care following decade-long battle https://bc.ctvnews.ca/b-c-supreme-court-rules-against-legalizing-private-health-care-following-decade-long-battle-1.5099737 The rapid expansion of euthanasia—in the wake of the Court’s ruling in 2015 that opened the door to the legalization of this practice—could spark claims by vulnerable Canadians that this approach jeopardizes their right to life and the security of the person. Abortion, owing to the constitutional winds that are gusting from the United States, could also return to the Court down the road for a determination as to whether the Charter guarantees a right to abortion.Why Canada’s Roe v. Wade didn’t enshrine abortion as a right https://www.cbc.ca/news/canada/abortion-rights-canada-morgentaler-court-1.6439612

The Charter did not come with a crystal ball when it arrived in 1982. The truth is that, in the decades to come, many issues that none of us can currently imagine will reach the Supreme Court through the vehicle of Charter litigation. One thing I am sure of is that it will be fascinating—and astonishing from the perspective of 2022—to survey our constitutional landscape on the 80th anniversary of the Charter. If the first four decades are any indication, the next four also promise to be transformative for Canada and Canadians alike.

Patrick Luciani: For Russians, the comfort of security outweighs the desire for truth

Commentary

When countries criticize each other, they always make a distinction between the people and their government. It’s not the people they attack but the country’s rulers. In the case of Russia, this thinking is changing with the invasion of Ukraine. 

A recent survey conducted by RIWI, a Canadian research firm, found that 48 percent of Russians believe that people should support their country even if they know their nation’s actions are wrong.Half of Russians Believe That People Should Support Their Country Even If Its Actions Are Wrong, According to RIWI’s New Cold War II Index https://www.newsfilecorp.com/release/121083 This support compares with 35 percent in China and 32 percent in the United States. After the 2014 invasion and annexation of Crimea, public support for a total invasion of Ukraine went to 75 percent. Putin took note of his success in rousing public support and was confident he had the people behind him.

Russians can be forgiven for not answering surveys truthfully, given the threat of long prison terms if anyone criticizes the war in Ukraine. But support for the war seems intuitively true. Some put the support for the war at 80 percent.Putin’s war will destroy Russia https://www.theglobeandmail.com/opinion/article-putins-war-will-destroy-russia/

Russians believe the West intends to destroy their country and a fascist government runs Ukraine, thanks to a steady beat of anti-American propaganda by state-controlled media.  Russians feel they are the victims of fake Western news and believe the war—or special military operation—was provoked by Ukrainian Nazis killing innocent Russian-speaking Ukrainians. The atrocities in Bucha and the sinking of their great battleship Moskva destroyed by Ukrainian drone missiles are fabrications by the West. Russians don’t even believe their Ukrainian relatives about the horrific crimes committed by Russian soldiers.

In our post-truth world, facts are malleable, and Putin took advantage with a vengeance. How has Putin’s Big Lie worked while the people’s voices remained muffled and mute?

One reason is that lies proliferate in a system that stifles the media. Joshua Yaffa, a correspondent in Moscow for The New Yorker, explains the deep denial of many Russians in his book, Between Two Fires: Truth, Ambition, and Compromise in Putin’s Russia. The citizen accommodates himself to the realities of the state’s power and manages to get along where bravery takes the form of passive resistance. The book helps to explain how the Kremlin maintains control and how talented Russians are making their way in Putinland. Between Two Fires begins with the work of Yuri Levada, a respected Russian sociologist who calls this new accommodating citizen the “wily man.” 

Levada hoped that a new citizen would emerge with the gradual decline of a totalitarian state. Perestroika—reform of the economic and political system—gave some hope that communism hadn’t destroyed the capacity to resist state controls; that dream was short-lived with the fall of Mikhail Gorbachev in 1991. Under Putin, the “wily man” continues to tolerate deception with the desire to be deceived. 

Instead of reform, people reverted to their old fears and subservience to the state. It was a step too far for a people subjected to communist rule for over 70 years. Even though there was a desire for many Soviet citizens for freedom, the comfort of security won out. When communism collapsed, the average citizen was now caught between the world of Stalin and Steve Jobs. Putin came along and brought the state back under the direct control of a strongman “responsive to his whims,” controlling the economy, civil society, the law, and the legislature. He even has the support of Moscow’s Patriarch of the Russian Orthodox Church for a war that has already taken tens of thousands of lives with soldiers marauding and killing at will.Russian Orthodox leader backs war in Ukraine, divides faith https://www.washingtonpost.com/world/2022/04/18/russian-orthodox-church-ukraine-war/ 

And yet the Patriarch remains silent while Russians act perplexed about why they can’t take vacations in the south of France. Many shrug their shoulders and instead head for the beaches in Turkey, where they still welcome Russian tourists. For most, this feels more like the return of order where the Russian people have rid themselves of the responsibility to govern.  

Second, Putin had the good fortune to govern when high energy prices brought billions for himself and tripled average incomes. This happy coincidence kept Putin’s security forces busy killing and stifling his political and media critics, consolidating his power while citizens shopped. The economy was good, and citizens weren’t going to start asking too many questions. Besides, they liked a leader showing the world that Russia was punching back at the arrogant and decadent West.

Citizens long forgot the days when Solzhenitsyn’s book One Day in the Life of Ivan Denisovich shocked the conscience of the average Russian. Twenty-five years after the collapse of the USSR, Russians no longer feel guilty about their country. Here Yaffa quotes Lev Gudkov, Levada’s successor: “the personality type born in that period has proven remarkably stable—a system of consciousness easy to manipulate, yet difficult to change.”  

Putin was now in complete control, interested in only power and profit, trapping 145 million in a “cage welded shut by propaganda and repression.” What surprised Yaffa was how many intelligent ordinary Russians acquiesced and accepted their situation as neither good nor bad. Russians tolerated even the unbelievable corruption by Putin and his oligarchs. When the Moskva warship sank, it was a $750 million (USD) loss to Russia, almost the exact cost of Putin’s private yacht now docked in Italy.Moskva Warship’s Sinking a $750 Million Loss for Russian Military: Report https://www.newsweek.com/moskva-warships-sinking-750-million-loss-russian-military-report-1698163 

The third explanation is Russian reverence for their military. May 9 is a sacred day for Russians when they remember the deaths of 27 million Soviets killed fighting in WWII. The Russian army is deeply beloved and held in the highest esteem throughout the country, and any criticism is taken as a harsh betrayal. Even the great scientist and Nobel Peace winner Andrei Sakharov was attacked for daring to criticize the army’s war crimes in Afghanistan. Russians can’t imagine their soldiers other than heroic. Putin is now usurping and betraying love for Russia’s military to justify his war of aggression, claiming victory will be ours as in 1945. 

Where were the defenders of democracy of August 1991 when millions of Soviet and Russian citizens took to the streets to denounce and stifle the right-wing coup led by the KGB? Where are the people now when the country needs them? This is not the nation of Chekhov or Tolstoy. This war in Ukraine is damaging Russia’s reputation. Its culture and image are at stake, sweeping up brave Russians against the war and isolating its artists, athletes, businesses, and students. Russians must stop believing that Putin will save world Christianity, or Foreign Minister Sergei Lavrov’s outrageous claim that Hitler had Jewish blood insinuates Ukraine’s president can be both a Jew and a Nazi. 

Putin is responsible for the war in Ukraine. But the longer the war continues, the Russians can no longer make excuses for a leader ruining their economy and international rank as a great country. They must see the truth or be as guilty as their leader.