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Facing Our Destiny: Rights and Canadian Distinctiveness*

Published online by Cambridge University Press:  10 November 2009

David J. Elkins
David J. Elkins
Affiliation:
University of British Columbia
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Abstract

The Canadian Constitution contains several distinctive rights not found in the United States Constitution. Indeed, the collective and community-based rights Canadians take for granted are inimical to American liberal traditions. Negative rights or interpretive provisions, such as the non obstante clause, are unique to Canada among Western democracies. The author argues that these rights derive from the country's historical concerns with religious and linguistic communities—especially in Quebec—and that they in turn condition how politics must be conducted in Canada.

Résumé

La Constitution canadienne se distingue de la Constitution des États-Unis par la reconnaissance de droits collectifs. Ces droits, que les Canadiens tiennent pour évidents, se démarquent nettement d'une tradition américaine qui les rejette au nom du libéralisme individualiste. Des droits de type négatif et des provisions tels que la clause nonobstant font du Canada un cas unique parmi les démocraties occidentales. L'auteur attribue cette originalité à l'histoire d'un pays aux prises—surtout au Québec—avec des conflits communautaires religieux et linguistiques. La résolution de ces conflits dans le respect des particularismes communautaires a créé un modèle de gestion des affaires publiques qui continue d'influencer et de guider l'action politique.

Type
Research Article
Information
Canadian Journal of Political Science/Revue canadienne de science politique , Volume 22 , Issue 4 , December 1989 , pp. 699 - 716
Copyright
Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1989

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References

1 Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980), 147Google Scholar, cites Hannah Arendt to the effect that the American Revolution was a plea for “civilized government” whereas the French Revolution was about rights “independent of and outside the body politic.” To that extent the Canadian Charter partakes of both traditions. It is heavily process-oriented but builds in values which in the United States would be found only in the political arena.

2 Because the Charter was composed nearly 200 years later than the Bill of Rights, Canadians have learned from American experience. Nevertheless, it is difficult to imagine that American politicians would, were they drafting a Bill of Rights today, include the collective and community rights outlined below.

3 Some people would deny that these are rights, and they might prefer to call them powers or rules. Even if the labels may be contested, the national differences in provisions would be real and substantial.

4 Greschner, Donna, “How Not to Drown in Meech Lake: Rules, Principles, and Women's Equality Rights,” in Swinton, Katherine E. and Rogerson, Carol J. (eds.), Competing Constitutional Visions: The Meech Lake Accord (Toronto: Carswell, 1988), 55–63.Google Scholar It may also be helpful to think of negative rights in light of Frank Scott's distinction between “liberty against government” and “liberty through government.” Scott, Frank, Essays on the Constitution: Aspects of Canadian Law and Politics (Toronto: University of Toronto Press, 1977), 357.Google Scholar

5 Another way of making plain the distinction concerns who benefits. Individual rights relate to benefits which accrue to a specific individual, with the “externalities” limited to the establishment of precedents for other individuals’ ability to exercise these rights. Collective or community rights, on the other hand, may convey benefits on individuals, but those benefits will “spill over” onto a specific community and not to all individuals, and perhaps not even equally to all members of the community.

6 See in particular, Woehrling, José, “Minority Cultural and Linguistic Rights and Equality Rights in the Canadian Charter of Rights and Freedoms,” McGill Law Journal 31 (1985), 50–92.Google Scholar

7 Are they then “government rights”? If so, they are not rights as generally conceived, since rights are usually designed to protect us from governments. While it is true that community rights may on occasion be exercised by means of government decision—as with the Newfoundland rule in section 6(4) or with any use of section 33—they often take other forms. For example, the court decision in Caldwell v. Stuart, [1984] 2 S.C.R. 603, confirmed the right of Catholic school boards in British Columbia to dismiss a Catholic teacher who married a divorced person and thus established a non-governmental right which could be exercised by a community group. Similarly, the recent decision in the Ontario Court of Appeal affirmed that certain French-language education rights went beyond parental decision to encompass the requirement that French schools have their own school boards. See Ref. re: Education Act of Ontario and Minority Language Education Rights (1984), 10 D.L.R. (4th) 491.

8 In this case the relevant community is the entire Canadian society, and the courts are its instrument.

9 Numbers are also to be considered in provision of government services in the minority official language (section 20). In both cases, the exercise of these rights or provisions is conditional on the collective decision about size of community. Whether the decision will be made by a legislature or a court, it will be made by representatives of provincial or federal societies. One should note, as Woehrling has, that section 15(1) does not include language as one of the expressly prohibited grounds of discrimination. He speculates that this “could probably be interpreted as indicating that the drafters felt that individual linguistic equality is less important and requires less protection than equality between the two major language groups in Canada” (“Minority Cultural and Linguistic Rights and Equality Rights in the Canadian Charter of Rights and Freedoms,” 90). See also Green, Leslie, “Are Language Rights Fundamental?” Osgoode Hall Law Journal 25 (1987), 639–69.Google Scholar

10 Since many ethnic groups lack any concentrated geographic base, sometimes not even neighbourhoods, they will over time be less able to act as communities. To the extent that they possess organizations, these may be increasingly undercut by their members’ intermarriage and involvement in other organizations (especially political parties). Hence, this provision may eventually amount to another form of protection for religious and/or linguistic rights.

11 I am indebted to Douglas Sanders, Professor of Law, University of British Columbia for clarifying my understanding of aboriginal rights, even though he may disapprove of my statements of them.

12 Siblings involve the smallest community implicated in the Charter, but section 21(1) and (2) constitute community rights in the strict sense: the right is defined in terms of an individual being part of a group and the right will be exercised by the parent (since there is no requirement that the siblings all receive the same kind of education). In both ways, then, the lone individual cannot exercise the right at his or her discretion.

13 One must ask why section 33 does not apply to all parts of the Charter. Although I cannot document the motives of the drafters, the exclusions seem to me significant. Application of section 33 to fundamental freedoms, legal rights and equality rights but not to any of the collective or community rights or two democratic process rights (especially voting) suggests that consciously or unconsciously the decision results in greater security for community concerns where they may conflict with individual rights. Woehrling, “Minority Cultural and Linguistic Rights and Equality Rights in the Canadian Charter of Rights and Freedoms,” 84–85, defends the conclusion that section 33 cannot apply to the democratic process or to minorities. See also Morton, F. L., “Group Rights versus Individual Rights in the Charter: The Special Cases of Natives and the Quebecois,” in Nevitte, Neil and Kornberg, Allan (eds.), Minorities and the Canadian State (Oakville, Ont.: Mosaic Press, 1985), 83–84.Google Scholar

14 All of the negative rights are community rights, in my sense, and all of them have the effect of limiting or overriding individual rights.

15 Greschner, “How Not to Drown in Meech Lake,” 57.

16 Dworkin, Ronald, A Matter of Principle (Cambridge: Harvard University Press, 1985), 359–65Google Scholar; and Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), xi.Google ScholarPubMed

17 Greschner, “How Not to Drown in Meech Lake,” 57–58.

18 Of course, American and Canadian practices may be more similar than their laws or constitutions, since borrowing and imitation have occurred. Given the divergences in provisions about rights—especially negative rights—it is doubtful if practices could be identical. This is a question worthy of study but clearly beyond the scope of this address.

19 Romanow, Roy, Whyte, John, and Leeson, Howard, Canada… Notwithstanding: The Making of the Constitution 1976–1982 (Toronto: Carswell, 1984)Google Scholar; Sheppard, Robert and Valpy, Michael, The National Deal: The Fight for a Canadian Constitution (Toronto: Fleet Books, 1982)Google Scholar; and Sanders, Douglas E., “The Renewal of Indian Special Status,” in Bayefsky, Anne and Eberts, Mary (eds.), Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985), 529–63.Google Scholar

20 For the significance of provisions being largely unconscious, see Elkins, David J. and Simeon, Richard, “A Cause in Search of Its Effect, or What Does Political Culture Explain?” Comparative Politics 11 (1979), 127–45.CrossRefGoogle Scholar

21 Hardin, Herschel, A Nation Unaware: The Canadian Economic Culture (Vancouver: J. J. Douglas, 1974)Google Scholar, and Hardin, Herschel, Closed Circuits: The Sellout of Canadian Television (Vancouver: Douglas and Mclntyre, 1985).Google Scholar As an aside, I have been repeatedly struck by what a thoroughly American outlook is implicit in Rawls's, John concept of the “veil of ignorance” in A Theory of Justice (Cambridge: Harvard University Press, 1971)Google Scholar in which individuals choose their rights without knowing who they are or more significantly the groups or communities to which they would belong if they were not behind the veil of ignorance. See also Monahan, Patrick, Politics and the Constitution: The Charter, Federalism, and the Supreme Court of Canada (Toronto: Carswell, 1987), esp. 87–96.Google Scholar

22 lam indebted to my colleague Professor Samuel V. LaSelva for suggesting this way of stating my argument. He is not, however, responsible for my use of this phrase.

23 Paltiel, Khayyam, “Group Rights in the Canadian Constitution and Aboriginal Claims to Self-determination,” in Jackson, Robert J., Jackson, Doreen and Baxter-Moore, Nicholas (eds.), Contemporary Canadian Politics: Readings and Notes (Scarborough: Prentice-Hall, 1987), 28.Google Scholar One may speculate whether these provisions or exemptions will eventually be challenged under the equality provisions of the Charter. If so, they could be declared unconstitutional. If so, they could be saved by use of section 33, which is one good reason why the federal government may not want to take up Prime Minister Brian Mulroney's challenge to bar use of section 33 by the federal government. Of course, unsuccessful court challenges could have the effect of encouraging other groups to seek their own exemptions.

24 Ford v. Quebec (Attorney General) and Devine v. Quebec (A.G.), December 15, 1988.

25 Public justifications do not always correspond exactly to private motivations. Hence, it may be correct that many francophones urged the use of section 33 because they found offensive or a political affront any public signs in a language other than French. Hence, this may seem to be a case of the majority suppressing political expressions of a minority. See below for another interpretation; but more generally note that private motives may be suspect or even dishonourable and yet the action flowing from them may have other justifications.

26 Quebec's ban on certain types of television advertising directed at children was recently ruled upon by the Supreme Court of Canada, who found that the ban did contravene section 2 protections of free speech but found that the ban was saved by section 1 as “demonstrably justified in a free and democratic society.” See The Globe and Mail, April 28, 1989, reporting Irwin Toy Ltd. v. Que.(A.-G.) (S.C. no. 8716).

27 Emphasis added.

28 And indeed probably also a majority in most cities and towns.

29 Even more graphically described by the novelist Beauchemin, Yves as like “a cube of sugar beside a gallon of coffee” (The Globe and Mail, April 29, 1989).Google Scholar

30 Laponce, Jean A., Languages and Their Territories (Toronto: University of Toronto Press, 1987), 4.Google Scholar

31 It is perhaps more accurate to say it reveals Canada's Scottish heritage. See Smith, Peter J., “The Ideological Origins of Canadian Confederation,” this Journal 20, (1987), 3–29.Google Scholar

32 That is not justification for thinking that whatever is, is correct. One can debate whether Canadians have gone too far in protecting the French fact, as some have argued, or not far enough.

33 Again I must comment on motives, this time of many English Canadians, which balances out my comments about French Canadians in note 25 above. My hunch is that anglophones may accept bilingualism less for the high-minded reasons in the text and more for its usefulness in making Canada distinct from the United States. In short, the present situation may not be the result of benevolent tolerance as much as self-interest; nevertheless, current policies may be justified anyway.

34 The complexities one would confront in trying to develop this argument may be appreciated by reading the debate about the usefulness of “fragment theory.” See especially Forbes, H. D., “Hartz-Horowitz at Twenty: Nationalism, Toryism and Socialism in Canada and the United States,” this Journal 20 (1987), 287–315Google Scholar; Wiseman, Nelson, “A Note on ‘Hartz-Horowitz at Twenty’: The Case of French Canada,” this Journal 21 (1988), 795–806Google Scholar; and Forbes, H. D., “Rejoinder to ‘A Note on “Hartz-Horowitz at Twenty”: The Case of French Canada,’” this Journal 21 (1988), 807–11.Google Scholar

35 Elkins, David J. and Simeon, Richard, Small Worlds: Provinces and Parties in Canadian Political Life (Toronto: Methuen, 1980).Google Scholar

36 Note that cultural differences to support the claim that Quebec is more collectivist than the rest of Canada may be detected even in names of organizations: Canadian Political Science Association (l'Association canadienne de science politique) versus la Société québécoise de science poltique. To my mind “association” is individualistic and instrumental, whereas “society” is communitarian and organic. The two groups are joined in a form of sovereignty-association.

37 Or “two solitudes” for that matter. One must recall that Hugh MacLennan took his title from Rainer Maria Rilke: “Love consists in this, that two solitudes protect, and touch, and greet each other.”

38 It would be amusing were it not alarming that many of the people who urge that a stronger federal government is required to ensure Canada's survival as a distinct society also chastise Quebec for using Section 33 to protect its distinct society within Canada.

39 Ford v. Quebec (Attorney General), December 18, 1988.

40 Richard Simeon, “Meech Lake and Visions of Canada,” in Swinton and Rogerson, (eds.) Competing Constitutional Visions, 305.

41 The Supreme Court of Canada, in Ford v. Quebec (Attorney General), December 18, 1988, at page 37, quoted approvingly the words of Brisson J. in his Quebec Court of Appeal judgment which they were reviewing: “Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.”

42 Hart, H. L. A., Law, Liberty and Morality (Stanford: Stanford University Press, 1963), 80.Google Scholar

43 Smiley, Donald V., The Canadian Political Nationality (Toronto: Methuen, 1967)Google Scholar; and Smiley, Donald V., “The Rowell-Sirois Report, Provincial Autonomy and Post-War Canadian Federalism,” Canadian Journal of Economics and Political Science 28 (1962), 54–69.CrossRefGoogle Scholar

44 And that is one good reason why we need section 33 of the Charter.

45 Clift, Dominique, The Secret Kingdom: Interpretations of the Canadian Character (Toronto: McClelland and Stewart, 1989).Google Scholar