A true Charter challenge: Empower Canadians with a new Bill of Rights, and our MPs, too

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TheGlobeandMail.com – Opinion
August 2, 2019.   Patrick Visintini and Mark Dance

Patrick Visintini and Mark Dance are recent graduates of the McGill Law Faculty.

Canadians imagine that our Charter of Rights and Freedoms sprang fully formed from the imagination of a visionary prime minister. But we too quickly forget that just as crucial to our basic rights document were the 267 hours of scrutiny and amendment by a joint committee of 25 members of Parliament and senators.

While Pierre Trudeau permitted the formation of the committee to lend democratic legitimacy to the constitutional nation-building exercise, empowered parliamentarians developed visions of their own beyond his desire for tight control. “They twice extended the length of the committee’s deadline; and they accepted several important amendments proposed by the opposition,” wrote constitutional scholar Adam Dodek. “The opposition Tories and NDP were willing to make deals on certain key issues rather than simply try to oppose and obstruct the government’s work.”

Nearly as important as the substantive contributions to our rights architecture is the fact that this committee was the first to be televised in Canada. By being independent-minded and wielding significant legislative power in the public interest, these parliamentarians garnered national attention.

Things have changed in the years since the Constitution Act of 1982 became law. Critical debates about rights in Canada have been largely left to lawyers and judges, expanding rights through constitutional interpretation rather than amendment: the right to strike in Saskatchewan Federation of Labour, doctor-assisted dying in Carter and the extension of sexual orientation as a protected ground of discrimination in Haig, to name a few.

And it’s long been a running joke in Canada that our MPs become “nobodies 50 yards off the Hill,” but the trivialized legislative role that they have played in recent decades has arguably made them nobodies on Parliament Hill, as well.

A dusted-off Canadian Bill of Rights, the Diefenbaker-era statute that first acquainted Canadians with legislatively enshrined rights, could reverse both these trends. Without constitutional amendment, a federal Parliament has the ability to establish new rights, thus holding themselves and the federal government to account for future law-making and administrative action – and reassert the centrality of our democratic representatives in the Canadian rights project.

And rather than having new rights strewn across separate statutes, a single quasi-constitutional companion to the Charter would enhance the public’s ability to understand, track and organize to defend their rights.

Despite the wide net cast by the Constitution’s political framers, plenty of now-pertinent rights never made it into the Charter: environmental rights, victims rights, housing rights and the rights of Indigenous peoples to self-determination and self-government.

The Bill of Rights could act as a sort of testing pool, where these new rights are developed and brought to life.

Parliamentarians may be the trustees of the Canadian public, and many arrive on the Hill ready to create change in the public interest. But they’re often rendered timid in the face of electoral interests and ironclad party control. A Bill of Rights could allow MPs to retake centre stage.

The multipartisan attempt to pass an Indigenous rights bill through Parliament this past year indicates the willingness and ability of MPs to champion the rights of neglected minorities. While NDP MP Romeo Saganash’s private member’s bill effectively perished when the Senate rose this summer, its passage through the House of Commons with 72 per cent support was a feat unto itself, inviting Canadians to look to parliamentarians, instead of governments or judges, to take their rights to the next level. A wide-ranging debate over a new Bill of Rights could allow parliamentarians to develop political confidence in addition to new rights such as those found in Mr. Saganash’s proposal.

A revitalized legislative purpose could also curb hyperpartisan behaviour. Requiring a two-thirds majority in both Houses of Parliament to add to or amend the new Bill of Rights would practically guarantee that cross-party consensus and collaboration would be needed.

Finally, a rejuvenated Bill of Rights would serve as a shield against judicial reactionaries. While we enjoy a relatively state-of-the-art constitution and a Supreme Court that understands those laws as a “living tree,” we may not always be so lucky. We cannot assume that we will always be immune to the American affliction of constitutional originalism, petrifying our living Constitution where it stands or even shrinking it to fit in the “ordinary meaning” that it would have had in 1982.

A rejuvenated Bill of Rights could act as a democratically protected companion to the Charter, nurturing anew Canada’s living tree constitutionalism.

https://www.theglobeandmail.com/opinion/article-a-true-charter-challenge-empower-canadians-with-a-new-bill-of-rights/

 

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