Illustrations: Jenn Liv
Writer and human rights advocate AMIRA ELGHAWABY examines the legacy and future of Canada’s Charter or Rights and Freedoms.
I was once giving a presentation about human rights in Canada to an audience of European advocates at an international conference. As I described the evolution of the interpretation of Canada’s Charter of Rights and Freedoms, and the attempts to balance competing rights, a French activist couldn’t help but blurt out,
“That sounds like Disneyland!”
The audience laughed, but he had a point. Coming from a country like France, where the religious freedoms of minority communities are seemingly sacrificed at the altar of a restrictive definition of secularism, the activist couldn’t imagine living in a place that carefully weighed the impacts of laws and policies against its peoples’ constitutionally protected rights.
I’ve told this story many times because it reminds me that, while rights and freedoms are frequently contested, people in Canada are fortunate to live in a place with a solid human rights framework that has evolved over its forty-year history. Yet it’s a foundation that is continually being tested by new and complex questions.
For those interested in the law, the myriad cases involving Charter challenges provide a fascinating window into how the Supreme Court of Canada has weighed the rights of individuals against collective rights over the decades.
The Charter’s protections cover a range of personal rights, including freedom of expression, assembly, democratic participation, freedom from discrimination, presumption of innocence in criminal proceedings, and the right to receive instruction in French or English, among others.
In legal terms, many Charter rights can be described as negative, according to a 2020 legal analysis by Colin Feasby, David deVlieger, and Matthew Huys for the Alberta Law Review Society titled, Climate Change and the Right to a Healthy Environment in the Canadian Constitution.
Negative rights restrain the government by limiting what it can do. For example, they require the government to refrain from impeding or violating an individual’s right to express themselves.
Positive rights, meanwhile, could require the government to take action to help fulfill someone’s liberty, like the right to life, liberty, and personal security. For instance, requiring the state to provide a basic income or welfare.
Tensions have always existed around the interpretation of rights and the weighing of individual versus collective rights, most recently within the context of public health, climate change, and freedom of expression. At stake is our collective survival and well-being, making the need for more flexible interpretations of the Charter more critical than ever.
For instance, where groups including those representing youth or Indigenous communities have brought forward constitutional climate change claims, they are “objecting to government inaction, not government action. In other words, the constitutional climate change claims are, in essence, positive rights claims. Whether or not the Charter protects positive rights, particularly social and economic rights, is one of the great unresolved questions in Canadian law,” point out Feasby, deVlieger, and Huys.
That the understanding and purpose of the Charter can evolve was put forward by Supreme Court Justice Antonio Lamer, who has explained that the historical context of the creation of the Charter back in 1982 should not “stunt its growth.” In other words, there will be a continuing need to adapt our understanding of how rights ought to be protected.
Furthermore, Canada’s international obligations add another layer to ensuring a more nuanced or expansive view of our Charter rights, especially amid the global challenges brought on by the COVID-19 pandemic. As lawyers Marie-Claude Landry, Chief Commissioner of the Canadian Rights Commission, and Isha Khan, CEO of the Canadian Museum of Human Rights, argue in a joint essay marking Human Rights Day last year, the Universal Declaration of Human Rights (UDHR) itself provides guidance on how to balance individual freedoms against collective rights.
“Conspicuously overlooked is Article 29 [of the UDHR], which adds crucial context,” write Landry and Khan.
“Article 29 recognizes there will be times like this when reasonable limits on individual freedoms are necessary for the collective good. Protecting the public from a deadly pandemic is certainly important to our global health and to our shared humanity.”
Section 1 of Canada’s Charter provides a similar caveat, of sorts: freedoms are not absolute and there can be reasonable limits where the collective requires it. Yet the Charter’s notwithstanding clause is also a risk to communities justifiably concerned over the suspension of their human rights for political gain.
Within the past several years, provincial governments have used the notwithstanding clause to cancel basic civil liberties, including those relating to religious freedoms, language, and democratic participation.
While Human Rights Watch documented at least eighty-three governments that violated the exercise of free speech and peaceful assembly with COVID-19 as their pretext, here in Canada, there has been little done to rein in harmful efforts to propagate conspiracy theories and smear politicians and public health officials, promote false information about legal rights, and spread hatred online and off.
The Charter itself has not been immune to that misinformation.
“COVID-19 is not the only pandemic that is threatening Canada. So too is the spread of misinformation and disinformation about Canadians’ legal rights. Any argument that the Charter contains absolute rights is false,” write legal scholars Jeffrey B. Meyers, Emily Dishart, and Rose Morgan in a February 2022 article for The Conversation.
Misunderstanding and ignorance weaken general literacy about legitimate Charter rights and have a negative impact on our appreciation and exercise of such rights.
Not only then should we be preoccupied with how the Charter’s evolving interpretation will protect our individual and collective rights, but we should also be deeply concerned about how more misunderstood and misinterpreted it may yet become. With false narratives abounding about the robbing of personal freedom whenever governments bring in health, climate, or other types of regulation, such weaponization of the Charter sets our communities up for a showdown that isn’t based on facts.
We can’t take Disneyland for granted.
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