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The Honourable Jody Wilson-Raybould, PC, QC, MP
Minister of Justice and Attorney General of Canada
Constitution 150 Conference
Shaw Centre, Ottawa, Ontario: March 10, 2017
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Thank you so much for that incredibly kind introduction. Gilakas’la, good afternoon, bonjour, tout le monde. I am incredibly pleased to be here today. I’m a bit overwhelmed by that introduction but I thank you again.
I want to acknowledge the territory of the Algonquin people that we are meeting on today.
I’m pleased to speak to the 150 years, to the conference that you are engaged in and the theme of my remarks in terms of 150 years 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 has been transformative. In many ways it defines our country. When asked what Canadians value most about Canada after healthcare it is the Charter.
However, that said, for Indigenous people the 150-year celebration has, for obvious reasons, seen a mixed reaction. On the one hand, it’s 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 with the guarantee in section 35 of the Constitution – that the rights of Indigenous peoples are hereby recognized and affirmed has not been the reality for 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 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 principle of civil society that the very idea of the Charter evokes. I’ll return to this later.
First, I will reflect on the 35th anniversary of the Charter 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 systemic 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 of human endeavour.
The Universal Declaration 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 United Nations General Assembly in December of 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 30 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 many in this room will be familiar with – 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 selected communities informed by grander appeal to universality of all the world’s communities – quite an ambition.
Perhaps because of this approach, Humphrey, when questioned on what philosophy guided him in setting out the first draft document, responded that the draft is based on no philosophy whatsoever.
I do not think Humphrey meant that the very idea of human rights – their universality, their indivisibility, their inalienability or 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 world view. Arguably, the only philosophical disposition 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.
As such it became a collective and truly global world view. It is a success that is not to be underestimated. The vote to adopt the declaration before the General Assembly in December of 1948 was unanimous. There was not one dissenting voice. 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.
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 now. 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 a 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 the year known for many milestones – patriation, the constitutional amending formula, constitutional independence, the birth of another major constitutional instrument and renaming of our founding constitutional instrument so that our confederation constitution would no longer be known as the Colonial British North America Act.
Nineteen eighty-two is a year known too for the promise captured in section 35 of the Constitution Act. 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 successes to do what the Canadian Bill of Rights failed to do – that is to inspire and instill a culture of rights within Canada’s governing institutions and within Canada’s people.
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 again, it is Canada’s music played on the declaration’s 30 strings. Many of the rights and freedoms guaranteed by the Charter are formulated in language that tracks very closely to the wording of the Declaration.
The fundamental freedoms of expression, association, religion and conscience and peaceful assembly, the rights to life, liberty and the security of the person, criminal justice rights and equality rights. Other aspects of our Charter signal a 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. For a time, some of these rights were saddled with a restrictive interpretation, a reading that limited their scope on the account of a political past 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 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. The Declaration signals it is indispensable for the dignity of individuals that they and their rights be situated in community. It is the concept of rights that’s very familiar to Indigenous peoples. It is perhaps Canada’s special contribution to human rights instruments that we began our Charter with the clause that affirms that special relationship between 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 one of the Charter that suggest that governments have license to violate rights and freedoms. No government had the 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.
Over the past 35 years, the transformative change brought about the Charter is in very large part owed to the leadership of the courts. Yes, there are those who may be critical, but the reputation of our Charter as a human rights instrument is a result of the jurisprudence that now underpins it. 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 for the past 35 years, 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 the legal priority of 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 of our policies.
It is in this regard that I want to now turn – specifically how I see my role as the Minister of Justice and the Attorney General of Canada and what our government is doing with respect to the Charter and the recognition of rights.
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 signaling that the Charter is for our government not a constraint on action we take under threat of judicial review but rather a guide for the recognition of rights culture within the activity of government. Much of this work has been quiet and out of view. It involves a lot of policy development. It is the work of providing legal advice on the Charter to my Cabinet colleagues, 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 policies reflect a 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 done so proudly.
Early 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 signaling 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 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 Minister of Justice 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 cleanup 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 cleanup was not undertaken by previous governments had to do – I again suspect – with the political sensitivity around the issue of abortion. The prohibition against abortion was declared unconstitutional in 1988, yet nearly 30 years on it 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, it 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 just repealing 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 that I’m undertaking.
This cleanup initiative relates to the laws of the previous governments and Parliaments, but what of the work of this government and this Parliament? How are we demonstrating publicly our Charter commitment?
One of the initiatives I undertook very early on as Minister, 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.
It is a very powerful way of demonstrating how the Charter is top-of-mind in the development of legislative initiatives. It is transparent and it informs debate. Each Charter statement aims to highlight for the public and parliamentary consideration and debate the Charter of Rights and Freedoms that are engaged in my department’s legislative initiative. 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 by tabling Charter statements it will help ensure a recognition-of-rights culture in all our legislative work. With respect to litigation, my responsibility as ambassador of the Charter takes on a different dynamic when I fulfill the office of the Attorney General. As the chief law officer of the Crown, the Attorney General has the responsibility to act in the public interest. In my mandate letter from the Prime Minister, I was tasked with fulfilling this duty in reviewing Canada’s strategy in terms of litigation.
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 in the matter of the previous government’s refusal to allow Ms. Ishaq to wear her niqab at a citizenship ceremony. I also abandoned Canada’s appeal challenging Omar Khadr’s grant of bail.
I discontinued Canada’s appeal in the refugee healthcare matter and our government has restored refugee healthcare coverage. These and other actions are outlined in my Litigation Year in Review 2016, the first – and not last – report on litigation positions ever published by an 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 previous Parliaments are challenged in court, and again especially when our government has committed to repealing the impugned provisions. The question is, should I concede the Charter challenge? In conceding 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, 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 the 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 the court’s 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 of the provinces or territories has the effect only in that province and territory. A decision of the Attorney General not to appeal the finding of an unconstitutionality of the Supreme Court could therefore result in an 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 court, 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 they will 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 the claimants.
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 predates both our great constitutional moments. In that pre-Confederation period, while there were some instances of treaty making and at times some other constructive patterns of arrangements 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 the settlers to live in harmony and build a shared future of mutual interdependence.
This massive work has not been achieved and was further complicated by colonial attitudes and structures, disease and beliefs in 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 that for the recognition of rights and reconciliation between Indigenous peoples and the Crown.
It is important to remember that section 35 was not without its own controversy. Many Indigenous peoples were skeptical of what was intended and whether or not 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, as was mentioned, was involved in these talks with the first Prime Minister Trudeau.
I remember watching it very clearly from my Grade Six class. Even in 1982, I think it’s fair to say 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 the report of the Truth and Reconciliation Commission.
The original vision of patriation – that the political conferences would chart a course for implementation of section 35 – never truly moved forward. This means Indigenous peoples had to take to the courts to force the implementation of section 35. The courts responded through hundreds of cases that affirmed the importance, meaning and strength of section 35 rights.
What I have described is also part of the challenge we must now rise to. Instead of building relationships 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 are focused on trying to limit them. In my opinion, the promise of section 35 is one that lends itself to the fulfillment through the courts, and through protracted conflict is not one. Reconciliation and adversarialism do not align.
The promise of section 35 can be fulfilled only through the proper 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 and do the 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.
We all have hard work to do, First Nations, Inuit and Métis nations must come prepared to reconstitute, 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 they align with a recognition-of-rights approach. After too long, I am pleased to say that Canada – our government – is undertaking this work. Last month, the Prime Minister struck a working group of Ministers to review 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 UN Declaration on the Rights of Indigenous Peoples and by our government’s commitment to implementing the Truth and Reconciliation calls to action. We will revisit the recommendations from the Royal Commission of Aboriginal Peoples.
Whether it is with respect for the Charter or section 35, political leadership requires as a constant reminder the ringing words of Prime Minister Pierre Trudeau during the proclamation ceremony on April 17th, 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.”
As we begin to write the next chapter of our great country’s story, there is much to be optimistic about that we will indeed continue to breathe collectively life into our Constitution, and in doing so set the standard for the globe in terms of freedoms and rights, and the protection of equality for all.
Gilakas’la. Thank you for allowing me to be here today.