Hot! Canada’s Charter of Rights: a global model

TheGlobeandMail.com – news/commentary/editorials
Published Friday, Feb. 10, 2012.   Editorial

Canada’s Charter of Rights and Freedoms, once thought to be tilting this country in the direction of the United States, is viewed as distinctive and a model for other nations, especially in the English-speaking Commonwealth.

That finding, in a U.S. study to be published this June, is a tribute to the intricate balancing act that is the 1982 Charter of Rights and Freedoms. As Canada was founded on compromise and dialogue, so are those qualities woven into its rights charter. And so it offers a structure for working through the competing interests found in any sophisticated, multicultural nation – as in the case of a Muslim woman who wished to wear her face veil while testifying in a sexual-assault case. (The case is before the Supreme Court of Canada.) That kind of discussion has proved to be illuminating for courts in other lands.

The structure for balancing opposed interests is found in three key sections. Section 1 sets out that rights are not absolute; governments may limit them, as long as they have evidence to justify those limits. (The Canadian Charter was the world’s first rights-protecting agreement with a broad limitations clause.)

Section 15, the equality-rights section, is open-ended, and new groups, such as gays and lesbians, have been brought under its umbrella by the Supreme Court. (Hence, gay marriage.)

Section 33, the override or “notwithstanding clause,” says that when a court strikes down legislation, a government may go ahead anyway – though it has to renew that decision every five years. That has made for a delicate balancing act between judges and legislators. Judges need to spend their political capital wisely.

It’s worth remembering the fears, not entirely unfounded, that judges would in effect sweep legislators aside and run the country. The Canadian model that seeks a balance or dialogue between judges and legislators has become the norm in many democracies, according to Sujit Choudhry, a Canadian who is the Cecelia Goetz Professor of Law at the NYU School of Law. Judges in Britain, where the European Convention on Human Rights has been imported into domestic law, cannot strike down laws, but they can review them and pronounce them incompatible with the convention – obliging legislators to reply.

“Is Canada a constitutional superpower?” U.S. law professors David Law and Mila Versteeg ask, in an article to be published this June in the New York University Law Review. They imply the answer is . . . no. Still, “on average, the world’s democracies are constitutionally more similar to Canada than to the United States.” And “given Canada’s relatively high prestige and goodwill as a member of the international community,” they conclude that Canada is “a constitutional trend-setter among common-law countries.”

Canada is no military superpower, though it fights hard. It may yet become an energy superpower, whatever that is. But in projecting its values through the plain-language Charter of Rights and Freedoms, it is proving surprisingly influential: a moral leader.

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