Patriation, the Recognition of Rights and Reconciliation

by

The Honourable Jody Wilson-Raybould, PC, QC, MP

Minister of Justice and Attorney General of Canada

To the

Constitution 150 Conference

Shaw Centre, Ottawa, Ontario: March 10, 2017

 

Check Against Delivery

 

Gilakas’la. Good afternoon. Bonjour, tout le monde. 

I want to acknowledge the territory of the Algonquin People that we’re meeting on today. 

Today as we consider the 150th anniversary of Canada, the theme of my remarks is “Patriation, the Recognition of Rights and Reconciliation.” The idea that the recognition of rights accompanied patriation is a familiar one. The Charter of Rights and Freedoms that accompanied Canada’s constitutional independence is the obvious manifestation of that recognition. And it has been transformative. Indeed – in many ways it defines our country – and when asked what Canadians value most about Canada – after health care – it is the Charter. 

However, and that said, for Indigenous Peoples – the 150 year celebration has for obvious reasons invoked mixed reactions – on the one hand it is hard to celebrate the past 150 years – a history of colonization, denial and failed promises – but on the other there is a renewed hope for a better and more inclusive Canada over the next 150 years. 

This is because the recognition of rights that was brought about with Patriation has been only partial, for the guarantee in section 35 of the Constitution that the rights of Indigenous People “are hereby recognized and affirmed” has not been the reality of Canada’s relationship with Indigenous peoples. 

Despite section 35, Indigenous peoples have still had to spend the last 35 years using the courts to prove their rights exist, and that governments should respect those rights. The end result is that we have spent more time in conflict rather than in a nation-to-nation relationship grounded in recognition and respect that a rights-based approach demands and as is reflected more generally in the principles of civil society that the very idea of the Charter evokes. 

I will return to this subject later. But first I will reflect on the 35th anniversary of the Charter of Rights and Freedoms in Canada’s 150th year. The Charter is internationally-renowned, and continues to be full of promise today. 

The story of our Charter begins not in 1982, but in the global recognition of rights that followed the systematic denial and violation of those same rights. The Second World War and the Universal Declaration of Human Rights represent both the worst and the best of the human condition; both the most frightening and the most promising illustration of our capacity for human endeavour. 

The Universal Declaration

The Universal Declaration of Human Rights sought to affirm the universality of human rights against the odds of history and geography—an affirmation in one time, at one place, for all time and for all people everywhere. The success of this endeavour before the UN General Assembly in December 1948 rested on its ability to incorporate different visions of freedom or, as French philosopher Jacques Maritain poetically put it: ‘many different kinds of music [can] be played on the document’s thirty strings.’ 

The initial draft of the Declaration was prepared by the first director of the UN Secretariat’s Human Rights Division – a Canadian whose name will be known to many here – John Humphrey. 

Humphrey instructed his staff ‘to study all the world’s existing constitutions and rights instruments’ in order to prepare a draft document recognizing universal rights. The creation of the Declaration proceeded from the local as it aspired to the universal – national and regional attempts to set out rights and freedoms for select communities informed the grander appeal to universality for all of the world’s communities. Quite an ambition.

Perhaps because of this approach, Humphrey, when questioned on what philosophy had guided him in setting out a first draft document of universal rights, responded that the draft was based on ‘no philosophy whatsoever.’ 

I do not think Humphrey meant that the very idea of human rights – their universality, their indivisibility, their inalienability, their inviolability – is without philosophical authority. On the contrary, Humphrey sought to insulate the Declaration from the charge that it was motivated and articulated from the perspective of any one governing philosophy or worldview. Arguably, the only philosophical disposition or world-view nakedly inconsistent with the Universal Declaration was one that would deny the very idea of rights. 

In this way, Humphrey captured how the success of the Universal Declaration was to affirm rights common to humankind, to affirm that each right was to be read in relation to every other, and to do so in a manner that would be acceptable to the world’s many political communities. And, as such, it became a new collective and truly global world-view. 

It is a success that is not to be underestimated. The vote to adopt the Declaration before the UN General Assembly in December 1948, was unanimous. There was not a single dissenting vote. 

To this day, the Universal Declaration remains an iconic affirmation of our capacity for human good. It remains, too, a ready reminder of the many ways in which human rights are declared for everyone, but not everywhere recognized. 

Charter of Rights and Freedoms

After its passage the Universal Declaration required a renewed effort by Canada to recognize rights in our laws and policies. The Canada of 1948 was not without its human rights successes, but nor was it without its human rights failures. 

Despite Canada’s support for the Declaration being based on strong foundations, we were quite a different country then than we are today. Before the 1960 Canadian Bill of Rights, there was no pan-Canadian recognition of rights; no pan-Canadian affirmation of the Universal Declaration in Canadian law. Our rights and freedoms were not recognized in any supreme law. 

The fate of the Canadian Bill of Rights is known to all in this room. While an important part of our human rights history, it was also not transformative. Despite the significance of 1960, it is not a year that stands out in Canadian history as the turning point for the recognition of rights. 

In contrast to 1960, the year 1982 does stand out as transformative in Canadian history. It stands out as the year marking the recognition of rights in our constitutional order. 

It is a year known for many milestones:

• Patriation;

• a constitutional amendment formula;

• constitutional independence;

• the birth of another major constitutional instrument; and

• the renaming of our founding constitutional instrument so that our Confederation Constitution would no longer be known as the colonial British North America Act; 

1982 is a year known too for the promise captured in section 35 of the Constitution Act, a theme I will return to. 

But for many Canadians, 1982 is remembered above all else for the Charter of Rights and Freedoms – 1982’s defining moment. It is a reputation that the Charter has earned over time. 

It is a reputation grounded in the Charter’s success to do what the Canadian Bill of Rights failed to do – that is, to inspire and instil a culture of rights within Canada’s governing institutions and within Canada’s peoples. That culture of rights has been a culture of the recognition of rights. 

The Charter is Canada’s Universal Declaration – our vision of freedom within the human family, or – to paraphrase Jacques Maritain – it is Canada’s music played on the Declaration’s thirty strings. 

Many of the rights and freedoms guaranteed by the Charter are formulated in language that tracks very closely the wording in the Declaration:

• the fundamental freedoms to expression, association, religion and conscience, and peaceful assembly;

• the rights to life, liberty, and security of the person;

• criminal justice rights;  and,

• equality rights. 

Other aspects of our Charter signal the special emphasis that we – as a country – place on the recognition of rights:

• our official language rights;

• our minority language educational rights;  and,

• our commitment to multiculturalism. 

For some, that special emphasis is not a candidate for universal affirmation. Certainly, for a time, some of these rights were saddled with a restrictive interpretation, a reading that limited their scope on account of a “political pact” understanding of their nature. This reading was in contrast to the broad and generous interpretation awarded to the more universalist rights in the Charter. 

That understanding has waned. In fact, it was never a contender. It was never true to the Universal Declaration itself, which captures, in its 22nd Article, the complex story of individuality and community: 

Everyone, as a member of society, … is entitled to realization … of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. 

The closing thought of the Declaration’s 22nd Article is powerful: economic, social and cultural rights are indispensable for dignity and the free development of one’s personality. 

Consider the relationship of the individual to the community captured by this reference. This relationship is perhaps the richest question of political philosophy. And the Declaration signals that it is indispensable for the dignity of individuals that they and their rights be situated in community. It is a conception of rights that is familiar to Indigenous peoples. 

So it is perhaps Canada’s special contribution to human rights instruments that we began our Charter with a clause that affirms that special relationship between the community and the individual. Our Charter’s first section signals that the very understanding of rights must be one that is situated socially. 

It is an understanding that should not be distracted by readings of section 1 of the Charter that suggests that governments have license to violate rights and freedoms. No government has that authority, even if many have purported to exercise it. The justification for positioning this clause first in our Charter, first in the constitutional instrument that marks our Patriation, is to pair the recognition of rights with the free and democratic society in which they are recognized.

The Charter over the past 35 years

Over the past 35 years, the transformative change brought about by the Charter is in very large part owed to the leadership of our courts. Yes, there are those that may be critical. But the reputation of our Charter as a human rights instrument is a result of the jurisprudence that now underpins it. And that jurisprudence is the result of individuals and groups seeking recognition of their rights before our courts and of the courts, in turn, finding the balance that defines Canada, and in many ways distinguishes us from other nations and makes our country special in a world where rights and freedoms seem to be in a period of global retraction. 

There is no question that the past 35 years of judicial application of the Charter has strengthened our laws and our policies and made our country better. It has affirmed not only the philosophical priority of rights, but also their legal priority by putting the authors of laws and policies to the test of justification – can our laws and policies be justified as being consistent with the recognition of rights? 

Judicial leadership has been the defining success of the past 35 years of our Charter. The success of our Charter over the next 35 years will, I hope, be measured by political leadership. The success or failure of the Charter’s next 35 transformative years will be measured by the ability of political leaders to demonstrate that a recognition-of-rights approach guides the development of our laws and our policies. 

And it is in this regard that I now want to turn, specifically how I see the role of the Minister of Justice and Attorney General of Canada and what our government has been doing with respect to the Charter and the recognition of rights. 

MoJAG as ambassador of the Charter

Since my appointment as Minister of Justice and Attorney General of Canada, I have sought to frame my role and my responsibility as “ambassador of the Charter.” It is a way of signalling that the Charter is, for our Government, not a constraint on the actions we take under threat of judicial review, but rather a guide for a recognition-of-rights culture within the activity of government. 

Much of this work is quiet and out of view:

• It is the work of policy development.

• It is the work of providing legal advice on the Charter to Cabinet and my ministerial colleagues.

• It is the work of developing and shaping Memoranda to Cabinet. 

The evidence of our success in adopting a recognition-of-rights approach will be measured by our outcomes. Simply put, do our laws and our policies reflect our commitment to the Charter? 

Even if much of our recognition-of-rights work is necessarily out of view, in the spirit of accountability and transparency some of it is, and must be, publicly communicated, and is done so proudly. 

Earlier this year, the Minister of Canadian Heritage and I announced the re-establishment of a renewed, modernized, and expanded Court Challenges Program. Government funding for Charter challenges is a way of signalling political responsibility for the Charter, as we recognize that not all of our laws and policies are always as they should be. 

Not all Canadians have an equal chance to have their day in court, and sometimes those that most need to bring a challenge are the least able to do so. The Court Challenges Program seeks to remove some of the economic barriers faced by those seeking recognition of their rights. 

As the Minister with primary responsibility for the rule of law, aligning our statutes with the law is a duty that rightly falls to me. With respect to the Criminal Code, earlier this week, I tabled in the House of Commons Bill C-39, a “Charter clean-up” bill, to remove provisions that have been declared unconstitutional by the Supreme Court of Canada. The so–called “zombie provisions”. 

One of the reasons I suspect the clean up was not undertaken by previous governments had to do with the political sensitivity around the issue of abortion. Prohibition against abortion was declared unconstitutional in 1988, yet – nearly 30 years on – remains on our books. 

The prohibition against murder in the commission of offences was declared unconstitutional in 1990, yet – as we all know too well after the Vader case – remains on our books. 

However, it is also recognized that more needs to be done and will be done in the months to come. Aligning the Criminal Code with the Charter requires more than repealing just the unconstitutional provisions. It also requires aligning the text of the Code with the interpretation that courts have given to various provisions. 

That said, when we consider the fact that the first step of this process involves removing provisions declared unconstitutional 30 years ago, we should not underplay the significance of this step or of the more encompassing criminal justice review I am undertaking. 

This “clean-up” initiative relates to the laws of previous governments and parliaments. But what of the work of this Government and this Parliament – how are we demonstrating publicly our Charter commitments? 

One of the initiatives I undertook upon taking office as the Minister of Justice, and of which I am particularly proud, is the use of “Charter Statements.”  For each bill I have tabled in the House, I have tabled an accompanying Charter Statement, which outlines how a recognition-of-rights approach has guided the development of each new legislative initiative. This is a very powerful way of demonstrating how the Charter is top of mind in the development of legislative initiatives. It is transparent and instructs informed debate. 

Each Charter Statement aims to highlight for public and parliamentary consideration and debate key Charter rights and freedoms that are engaged in my department’s legislative initiatives. 

The political leadership that will guide the next 35 years of the Charter and beyond requires an actively engaged Government and Parliament. I hope that the tabling of Charter Statements will help ensure a recognition-of-rights culture in all of our legislative work. 

The Attorney General in Charter litigation

With respect to litigation, my responsibility as ambassador of the Charter takes on a different dynamic, when I fulfil the office of Attorney General. 

As the Chief Law Officer of the Crown, the Attorney General has a responsibility to act in the public interest. In my mandate letter from the Prime Minister, I was tasked with fulfilling that duty in reviewing Canada’s litigation strategy. 

Early in my mandate, I acted on the promise to end appeals or positions that are not consistent with our commitments, the Charter or our values. 

Accordingly, I withdrew Canada’s application for leave to appeal to the Supreme Court of Canada in the matter of the previous Government’s refusal to allow Ms. Ishaq to wear her niqab during her citizenship ceremony. 

I also abandoned Canada’s appeal challenging Omar Khadr’s grant of bail. 

I discontinued Canada’s appeal in the refugee health care matter and our Government has restored refugee health care coverage. 

These and other actions are outlined in my Litigation Year in Review 2016, the first report on litigation positions ever published by the Attorney General of Canada. 

Reflecting on the conduct of the Attorney General in Charter litigation, let me say this. 

In reviewing Canada’s litigation strategy in Charter cases, I have sought to act in a principled manner, mindful of the special constitutional position of the Attorney General who is both a member of the executive and the Chief Law Officer of the Crown, mandated to defend Parliament’s legislative record. 

A principled approach has been necessary especially when laws adopted under a previous Parliament are challenged in court and again especially when our Government has committed to repealing the impugned provisions. The question asked is should I concede the Charter challenge? 

In conceiving of my responsibilities, I have identified and am following six principles that I believe should guide the Attorney General in Charter cases: 

First, the principle of Constitutionalism and the rule of law – the Attorney General must uphold and adhere to the Charter. 

Where the Attorney General concludes that there is no viable argument in favour of a law’s Charter compliance, she should concede a Charter claim. However, it should be noted that the Charter itself invites some nuance here, as there are three possible places for Charter concessions: whether a right is limited; whether the limitation is justified; and, what the remedy should be. 

Second, the principle of parliamentary democracy – the Attorney General is responsible for upholding laws passed by Canada’s democratically-elected legislature until they are changed by Parliament or declared unconstitutional by a court. 

As a member of the executive branch, the Attorney General should not undermine parliamentary democracy by readily conceding the unconstitutionality of laws that have been approved by Parliament. 

The Attorney General may therefore defend the Charter compliance of federal legislation at the same time that her Government promises to amend or repeal the challenged legislation through the parliamentary process. 

Third, the principle of adjudication – the only institutions that can authoritatively determine questions of law are courts. In fulfilling their duty, courts are assisted by full and fair argument by counsel, each putting forward the best case for and against the compliance of federal law with the Charter. 

Unqualified concessions by the Attorney General on constitutional questions may frustrate courts’ ability to arrive at informed constitutional conclusions. 

Fourth, the principle of continuity – the Crown’s legal position, as advanced by the Attorney General, must be coherent and consistent across changes in government. 

While a new Attorney General may change a previous government’s litigation strategy, any changes must be informed by her evaluation of what is in the public interest, and not in the partisan interest. 

Fifth, the principle of consistent application of the Charter – Charter rights should be interpreted and applied coherently across the country. And yet, a finding of unconstitutionality by a court in one province or territory has effect only in that province or territory. 

A decision by the Attorney General not to appeal a finding of unconstitutionality to the Supreme Court of Canada could therefore result in the inconsistent application of the Charter. The Attorney General may therefore appeal a court’s ruling on a Charter question in order to ensure a pan-Canadian determination of the law.

Sixth, the principle of access to justice – Litigation is expensive. Where an issue in dispute is discrete and limited to the parties before the courts, access to justice may be served by reserving scarce judicial resources for matters that are the subject of broader legal disputes. The Attorney General in these cases should seek to settle Charter litigation if she shares the legal conclusion of the claimant. 

In other cases, where a judicial decision may have immediate or broader importance, access to justice may favour the continuation of litigation so that the issue can be decisively resolved in a public forum. 

The interplay of these six principles will not always favour the same litigation positions. But I hope that they illustrate why, even for the ambassador of the Charter, litigation positions invite questions of deep constitutional strategy even in those instances when the Attorney General may share the Charter conclusions of claimants.

Nation-to-Nation Reconciliation 

I want to return now to the theme with which I began:  reconciliation with Indigenous Peoples and the unfinished work of this country – work not completed by Confederation or Patriation. 

The Crown’s relationship with Indigenous peoples, pre-date both of our two great constitutional moments. In that pre-Confederation period, while there were some instances of treaty-making, and at times some other constructive patterns between peoples, there were also significant wrongs and injustices. 

A legacy was left of massive work that still had to be done in order for proper relations between the original inhabitants of this land and settlers to live in harmony and bud a shared future of mutual interdependence. This massive work was not achieved, and was further complicated, by colonial attitudes and structures, disease and beliefs in the superiority and inferiority of different groups of people. As such Confederation did not set us on a course of reconciliation. Quite the contrary. 

By contrast and in an effort to correct the past, Patriation was accompanied by a clear promise to Indigenous peoples that moving forward, things would be different. It was a promise for the recognition of rights and reconciliation between Indigenous peoples and the Crown.

It is important to remember though, that section 35 was not without its own controversy. Many Indigenous peoples were sceptical of what was intended and whether the Crown could be trusted in this effort – in particular during the constitutional conferences that followed which were intended to spell out the right of self-government. My father was involved in these talks with the first Prime Minister Trudeau and I remember that from my grade six class. Even in 1982, I think it is fair to say, that the broader public did not have a strong appreciation of the legacy of colonialism that continued to exist in relation to Indigenous peoples – including residential schools and the Indian Act. Something that I believe today has changed somewhat and is supported by the release of report of the Truth and Reconciliation Commission. 

The original vision at Patriation, that the political conferences would chart the course for the implementation of section 35, never truly moved forward. This meant Indigenous peoples had to take to the courts to force the implementation of section 35. And the courts responded, through hundreds of cases that have affirmed the importance, meaning, and strength of section 35 rights. 

But what I have just described is also part the challenge that we must now rise to. Instead of building relations based on recognition, the Crown has put Indigenous peoples to the test of ‘proving’ their rights through long and expensive litigation. Similarly, Canada often has adopted approaches to negotiations that do not engage the common work of implementing and protecting Indigenous rights, but rather is focussed on trying to limit them. 

In my opinion, the promise of section 35 is not one that lends itself to the fulfilment through the courts or through protracted conflict. Reconciliation and adversarialism do not align. The promise of section 35 can be fulfilled only through proper and respectful nation-to-nation relationships. It is a promise that can be fulfilled only through political leadership and by the Crown and Indigenous peoples making the hard choices to move out of past patterns of relations that do not work. We need to build the trust necessary to move from conflict to collaboration, and chart a course to a new and transformative future that addresses inequalities and injustices through recognition and reconciliation. 

So, we all have hard work to do. First Nations, Inuit, and Métis nations must come prepared to rebuild their nations and to assume the responsibilities that come from self-determination and self-government. Some are ready, willing, and able today. Some will require more time. 

In turn, Canada must do its part to support Indigenous nations in this rebuilding work. Canada must confront the history of colonization and the denial of Indigenous peoples and their rights, legacies of which we continue to be surrounded by today. Canada must review its laws and its policies to ensure that they align with a recognition-of-rights approach. 

After too long, I am pleased to say that Canada is now undertaking this work. Last month, the Prime Minister struck a Working Group of Ministers on the Review of Laws and Policies related to Indigenous Peoples. He appointed me Chair of this Working Group. Its mandate is nothing short of transformative: it is to decolonize our federal laws and policies and to ensure that a recognition-of-rights approach is reflected in all aspects of Canada’s relationship with Indigenous peoples. No small task. 

Yes, the task ahead will not be easy. Some aspects of our review will invite dissent. But every aspect of our work will be guided by the promise of section 35 and the direction from the courts, by Canada’s unqualified support for the United Nations Declaration on the Rights of Indigenous Peoples, and by our Government’s commitment to implementing the Truth and Reconciliation Commission’s Calls to Action. We will revisit the recommendations of the Royal Commission on Aboriginal Peoples.

In closing let me say this: in many respects the Charter and section 35 are closely aligned. Both constitutionally affirm the recognition of rights and both require a shift from the judicial leadership of the past 35 years to political leadership over the next 35 years and beyond. That said, I think we have made more political progress with respect to implementing the Charter than we have in implementing section 35. 

Whether it is with respect to the Charter or section 35, political leadership requires, as a constant reminder, the ringing words of Prime Minister Pierre Trudeau during the Proclamation Ceremony of April 17, 35 years ago when he said:  “Let us celebrate the renewal and patriation of our Constitution; but let us put our faith, first and foremost, in the people of Canada who will breathe life into it.” 

And as we begin to write the next chapter in our great country’s story there is much to be optimistic about. That we will, indeed, continue to collectively breathe life into our Constitution, and in so doing set the standard for the globe in terms of freedoms and rights and the protection of equality for all. 

Gilakas’la. Merci.