Protecting Rights and Freedoms

Protecting Rights and Freedoms: Essays on the Charter's Place in Canada's Political, Legal, and Intellectual life

PHILIP BRYDEN
STEVEN DAVIS
JOHN RUSSELL
Copyright Date: 1994
Pages: 241
https://www.jstor.org/stable/10.3138/j.ctt2tv59n
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  • Book Info
    Protecting Rights and Freedoms
    Book Description:

    The authors, diverse in background and outlook, reflect varying points of view but share a significant degree of consensus on issues that need to be addressed.

    eISBN: 978-1-4426-7885-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. ACKNOWLEDGMENTS
    (pp. vii-viii)
  4. CONTRIBUTORS
    (pp. ix-2)
  5. 1 Protecting Rights and Freedoms: An Overview
    (pp. 3-20)
    PHILIP BRYDEN

    This book is a collection of essays that were originally presented at a conference organized by the British Columbia Civil Liberties Association (BCCLA) and the Simon Fraser University Philosophy Department in the spring of 1992 to celebrate the tenth anniversary of the proclamation of the Canadian Charter of Rights and Freedoms as part of the Canadian Constitution.”¹ At least, when I and the other members of the BCCLA’s board of directors who were involved in the organization of the conference began our planning, we thought of the Charter’s tenth anniversary as an occasion for celebration. At the end of the...

  6. I THE CHARTER AND CANADIAN POLITICAL LIFE
    • 2 Parliament’s Role in Protecting the Rights and Freedoms of Canadians
      (pp. 23-32)
      KIM CAMPBELL

      I am delighted that the B.C. Civil Liberties Association has created this special forum for the thoughtful consideration of our first decade of experience with the Canadian Charter of Rights and Freedoms. People in central Canada are, of course, capable of forgetting that your organization was formed before the Canadian Civil Liberties Association. And I understand that it is one of your standing jokes that almost any club that springs up on Yonge Street is inclined to immediately dub itself the “Royal Canadian Something or Other.” In any case, Canadians have now noticed your existence and special character – a process...

    • 3 The Political Purposes of the Charter: Have They Been Fulfilled? An Agnostic’s Report Card
      (pp. 33-44)
      PETER H. RUSSELL

      Ten years into charterland, the one clear consequence of the Charter is that it has produced an awful lot of Charter chatter by the chattering classes. In case you were wondering who belongs to this group, you need only look at the people attending this conference – those who have the time, the money, and the inclination to attend a decennial anniversary of an event which they must believe was significant for Canada, the adoption of a constitutional bill of rights.

      As a charter member of the chattering classes I do not mean to sound ungrateful. For whatever the Charter has...

    • 4 The Charter and Quebec
      (pp. 45-51)
      LYSIANE GAGNON

      Let’s begin with a paradox. The Charter of Rights is a concept borrowed from the United States’ political culture; it has no basis the British parliamentary system. It is often said that the Charter is now a major part of Canadian identity – at least as far as English Canadian intellectuals are concerned. So it is that this import from the United States is now hailed as a vital part of Canadian identity by precisely the same Canadian nationalists whose sense of collective identity has always been staunchly driven by anti-Americanism. Let’s continue with another paradox. In Quebec, where anti-Americanism is...

    • 5 Rights Talk: The Effect of the Charter on Canadian Political Discourse
      (pp. 52-59)
      JEFFREY SIMPSON

      A journalist may be forgiven for beginning with a reference to today’s news. This morning, we read of the federal government’s plans for a referendum bill. Two reactions immediately ensued, both illustrative of contemporary political discourse, one traditional, the other rather new. First, the opposition parties, as is typical, healthy, and traditional in a parliamentary democracy, immediately raised questions about this or that aspect of the proposed legislation. Second, third-party actors – so-called interest groups – threatened to bring a Charter challenge against the legislation, alleging that its provisions infringed, among other possibilities, on the rights of free speech and free association....

    • 6 Have the Equality Rights Made Any Difference?
      (pp. 60-90)
      LYNN SMITH

      Although this year marks the tenth anniversary of the Canadian Charter of Rights and Freedoms, it is only the seventh anniversary of the effective date of the section 15 equality rights.¹ Still, enough time has passed to make it worthwhile to be retrospective.

      In the context of this conference, which included a good sampling of Charter scepticism and even Charter phobia, as well as a warning from the minister of justice about the dangers of over-empowering the courts, I fear that if I say a good word for the Charter I will be seen as contrarian, or, worse still, as...

  7. II THE CHARTER IN THE COURTS
    • 7 The Supreme Court Judges’ Views of the Role of the Courts in the Appplication of the Charter
      (pp. 93-104)
      ANDRÉE LAJOIE and HENRY QUILLINAN

      Given the many open concepts that puncture its fabric, the Charter provides the courts with several channels through which to define their role in its application. These include the distance the courts are ready to travel towards the delimitation of the content and the scope of the entrenched rights themselves – such as, in particular, freedom of expression or equality; they also include the definition of the principles of fundamental justice, or the determination of what will bring justice into disrepute as mere examples of signals at which we can look to decipher the courts’ concept of their role. But nowhere...

    • 8 The Charter Then and Now
      (pp. 105-128)
      PATRICK J. MONAHAN

      Constitutions have a persistent habit of confounding and contradicting the fondest wishes of their creators. The idea that constitutions should or do conform to the “intentions of the drafters” may well be one of the most widely assumed but rarely observed features of constitutional politics the world over.

      No better example of this phenomenon can be found than the case of Canada itself. The drafters of the 1867 Act thought they were creating a highly centralized federation in which the national government would exercise all the significant powers while the provinces would operate as mere local appendages responsible for matters...

    • 9 The Supreme Court’s Rethinking of the Charter’s Fundamental Questions (Or Why the Charter Keeps Getting More Interesting)
      (pp. 129-142)
      ROBIN ELLIOT

      A few days after the Charter’s tenth anniversary, I was asked by a member of the judiciary what I now thought of the Charter. I suspect that he was expecting me to tell him whether I thought the Charter had proved itself to be either a positive or a negative force in the life of the Canadian polity. If that was what he was looking for, then I’m sure I disappointed him with my answer. What I said to him was that I thought the Charter was a good deal more interesting now than I thought it was back in...

  8. III THE CHARTER AND OUR INTELLECTUAL TRADITIONS
    • 10 Is Democracy a Constitutional Right? New Turns in an Old Debate
      (pp. 145-169)
      FRANK I. MICHELMAN

      How does the idea of democracy figure in constitutional argument? I offer here a report on current stirrings in American constitutional thought about that question.¹ More precisely, the question is whether constitutional argument as we know it has room for such a notion as a “right to democracy.” Does any such notion belong – does it or can it possibly fit – within those parts of our constitutions that we call charters and bills of rights?

      It may be that the answers are not exactly the same for our two countries. We shall see that the notion of a right to democracy...

    • 11 Après Nous la Liberté?
      (pp. 170-177)
      EDGAR Z. FRIEDENBERG

      At the time the Constitution Act of 1982 was being drafted, one of the arguments most vigorously advanced against the Charter of Rights was that it would, by its very existence, violate Canada’s most fundamental tradition: parliamentary supremacy. Sterling Lyon, then the premier of Manitoba, condemned the proposed Charter as an infernal American device that Canadians, who already knew what their rights were, did not need and should not accept. While many Americans might agree that liberty, like the automobile, the atom, and pizza, was an American invention, that is hardly sufficient reason to shackle it. At an election shortly...

    • 12 Multirow Federalism and the Charter
      (pp. 178-204)
      JAMES TULLY

      What are the relations of the Charter of Rights and Freedoms to our intellectual traditions? This is a difficult question to address because our aboriginal, Québécois, and English Canadian intellectual traditions are so complex and intertwined after four hundred years of interaction that it would take volumes to understand how the Charter fits into this rich tapestry. This paper addresses one aspect of the question. I will try to clarify the relation of the Charter to our main aboriginal, Québécois, and English Canadian traditions of federalism. This is one of the central issues in Canada today. As Sir Isaiah Berlin...

    • 13 Nationalistic Minorities and Liberal Traditions
      (pp. 205-241)
      JOHN RUSSELL

      It is a common criticism of liberal political theory that it cannot accommodate the claims of minority cultures to any sort of special status or rights to self-determination within a liberal constitutional regime. The conventional wisdom holds that liberalism denies the legitimacy of such, or indeed of any, so-called collective rights – or if liberalism is prepared to admit them, individual rights cannot be overridden in their name. Liberalism purportedly rejects these claims because of itsindividualism:as a normative political theory it apparently accords individuals a certain pre-eminent status, settling in their favour any conflict of rights that opposes individual...