RSS FeedAre there inalienable rights in Canada?
We in Canada like to think of ourselves as free. We also like to think we have rights. The police can’t throw us in jail for our political views. And if they do throw us in jail for any reason, the police must let us call a lawyer. A part of Canada’s constitution, the Canadian Charter of Rights and Freedoms guarantees our rights and freedoms. But the constitutional rights and freedoms such as freedom of expression, a right against arbitrary detention or imprisonment, and even our right to life, liberty and security, are not absolute. The Charter leaves loopholes for the federal Parliament, provincial legislatures, or even judges to limit or take away any rights or freedoms. There are no inalienable rights in Canada.
A legal right is a claim to a benefit. The law sets legal rights, and the courts will enforce them if no one else will. When you sign a contract to lease an apartment in exchange for rent, your tenant has a right to use the apartment, and you have a right to some of the tenant’s money. Your right is always someone else’s duty, which is either to give up the benefit you claim or to let you claim the benefit freely. You can also have rights against the government. For example, habeas corpus is a right to see a judge if the police arrest you. Freedoms are like rights but they are more about enjoying benefits you already have, such as speech or movement. Still, the flip side of every freedom is someone’s duty to respect it. For example, if you have a freedom of religion, the government may not ban your faith.
But rights and freedoms in our relations with the government are tricky because the government is a sovereign. It means that within its geographic borders the government writes the law. What good is a right if the government can scrap it? That’s where a constitution comes into play. It’s a superlaw that tells the government what laws it can and cannot write. And it’s very difficult for the government to change the constitution. The Canadian Charter is the part of our constitution that orders the government to respect certain human rights. If a provincial or the federal legislature passes a law infringing on our Charter right, the courts can strike that law from the books. It will have no force and effect. That way the Charter protects us from the government.
Even democracies need this protection to stop majorities from oppressing minorities. For example, our legal tradition has very good reasons for protecting some rights of the criminally accused. Only a minority of the total population will ever need these rights. Whether justified or baseless, a fear of crime can bring a party that wants to do away with these rights to power. In theory, our Charter will always stop the Parliament from touching the rights of the criminally accused. Before the Charter, the Parliament could throw out the presumption of innocence or the law against self-incrimination. A constitution can also protect racial, gender, or other minorities from discrimination. We can be sure of our human rights only when they are safe from the majority and the government it elects.
The Charter promises us this safety, but it doesn’t really deliver. There are several loopholes in the Charter that let the federal parliament, provincial legislatures, or the courts take away rights. First, the notwithstanding clause in s. 33 empowers legislatures to suspend fundamental freedoms (s. 2) and legal (ss. 7-14) and equality (s. 15) rights. Perhaps for fear of the ballot box, legislatures tried it for real only very few times. But if the government can suspend the rights, they are not inalienable.
Second, the most obvious limitation on all rights and freedoms in the Charter is in s. 1. It basically says that sometimes the Charter will not protect our rights. Suppose the Parliament passes a law that bans newspapers in a certain language. If the government can justify this law as reasonable “in a free and democratic society,” it can get away with it under s. 1. Who decides what’s reasonable and what’s free and democratic? Ultimately, it’s the nine people on the Supreme Court of Canada. Sometimes a s. 1 justification is a very hard task, but a right or freedom is guaranteed only if it’s legally certain, not if it’s probable or very likely. So the government can strip anyone of any Charter right with the consent of the Supreme Court.
Third, the courts decide what each right and freedom in Canada actually means. For example, s. 7 allows the government to deprive anyone of “the right to life, liberty, and security of the person” only in accordance with “the principles of fundamental justice.” The Supreme Court decides what these principles are. Next, the Charter often defines rights using the principle of “reasonableness,” which is really a code word for letting the courts fill in the details. See, for example, the right against “unreasonable search” (s. 8), the right to be tried within a “reasonable time” (s. 11(b)), etc. When the police breach our Charter rights to obtain evidence against us in a criminal investigation, we have a right to have it excluded from our trial—but only if “the admission of it in the proceedings would bring the administration of justice into disrepute” (s. 24(2)). Again, the courts decide what that means by applying factors laid down by the Supreme Court.
Finally, if the government breaches your Charter rights, the courts decide what compensation you get if any. It is little comfort to you and little deterrent to the government if the courts merely declare government action unconstitutional. Denied or insufficient remedies gut Charter rights and freedoms. As the recent case of Omar Khadr has shown, the Supreme Court can deny a meaningful remedy even for breaches of the most basic rights such as a right to fundamental justice in s. 7. Most Canadians don’t seem to like Omar Khadr or his family, so the majority is clearly not on his side. The Supreme Court didn’t say that it let the government off the legal hook because of the views of the majority of Canadians. But these views possibly encouraged the government when it violated Khadr’s Charter rights or denied him the requested remedy. What is the value of rights that depend on politics?
One can argue that these cases are extreme and that limits on our Charter rights are fine because we trust our government. After all we elect it. But consider this. First, majorities elect the government, and how certain are you what the majority will be like 20 years from now? Are you going to be in that majority? Do you want to entrust your most basic human rights to a majority? Second, even election rights in the Charter are not inalienable. Mix a national emergency with the right people on the Supreme Court (appointed by the Prime Minister; no Parliament’s consent required), and the words “reasonable,” “free,” and “democratic” in section 1 of the Canadian Charter can have a very different meaning.
The word “inalienable” expresses the idea of rights that the law can never let anyone take. An inalienable right is yours by the fact of your membership in the human species. No government or person gave you this right, so they can never take it away. It is yours by birth. It recognizes your inherent value as a human being regardless of who you are, what you did, or what you think. Very few rights can be inalienable but those that can are truly fundamental: a right to a fair trial, freedom of speech, habeas corpus. The US Declaration of Independence speaks of “Life, Liberty, and the pursuit of Happiness” as inalienable rights. The Universal Declaration of Human Rights recognizes “the inherent dignity and of the equal and inalienable rights of all members of the human family.”
Our Charter does not have the word “inalienable,” neither in letter nor in spirit. It uses other words. But social conditions change, and what’s not “reasonable,” “free,” or “democratic” today can become such in the future. There is a fully legal path to breaches of any rights in Canada. It doesn’t necessarily mean it’s possible politically, socially, or economically, but legally our rights are uncertain. A constitution that fails to protect minorities from the majority’s changing moods does not guarantee rights. The loopholes in the Charter show that we have rights and freedoms only as long as the government and the Supreme Court let us. Rights and freedoms in Canada do not inherently belong to us as human beings but are revocable gifts from the government and the courts. And if we can’t change our Charter, we must at least hold our government to account especially strictly when it comes to human rights.
Habeas corpus
Province pays $2,000 each to nine denied prompt bail hearings
The raid was meticulously planned and involved some 1,200 officers, but organizers overlooked one salient factor – ensuring Toronto’s bail courts were prepared for the crush of detainees.
Rae: Canada Has Its Own Voice on the International Scene
Hon. Bob Rae spoke this morning at the University of Western Ontario Law School on A Changing World: New Directions for Canadian Foreign Policy. What follows are notes (not a transcript) from his talk.
Law Students and Public Policy
Rae said that Canadian foreign policy as an issue that is a significant one in the politics of the country. As soon to be lawyers, the issue of Canada’s role in the world is a critical concern to all of us, and one that has tremendous opportunities as law students.
There is no clearer area of public policy where the ideological contrast between parties can be demonstrated. Western has produced some of the great legal minds of our time. Justice Rand, a former Dean of the school, made considerable contributions to the foreign policy of this country.
What is Canada’s Role?
Rae asked whether Is Canada’s role in the world is to essentially ally itself with the U.S. in terms of American foreign policy and position in the world. Or is Canada’s voice in the world one of greater independence – one in which we look to Canada’ expressing strong support for multilateralism, international law, and support for multilateral institutions in relation to trade relationships.
It seems over the past 50 years there has been an implicit debate in the country over these issues, and that Harper has now made this debate explicit. His view in the world is quite simple: Canada is a country whose values and interests are tied up with the U.S., who is our most important trade partner. Our primary role is therefore to be an ally and supporter of the U.S. Other areas of foreign policy are all subordinate to that. That is the key relationship, the driving force between Canada’s role in the world.
This is a view that puts a great deal of emphasis on military power, and expects that Canada has to play a much stronger role in the military side of the equation. It downplays Canada’s traditional role at UN in supporting international institutions. Our efforts against land mines and in support of the International Criminal Court are examples of this.
War in Iraq
Rae pointed to two speeches of by Howard Hampton and Stephen Harper at time of Iraq war. His point was made by a choice made by Chretien at the time – Canada was not willing to participate in invasion of Iraq. Harper saying yes we will. Interesting enough, the words he used were borrowed from President of Australia.
Canada’s decision not to participate in the Iraq war was a defining moment, and was based on two major factors:
- The existence of WMDs
- An imminent threat
The Canadian government did not believe Saddam had WMDs, or that the evidence supporting assertion was in any way adequate. The U.S. relying on secret information, but the information provided from Hans Blix could not justify assertion.
If Canada didn’t have that information, it would still have to establish some other idea as to why it is justified as act of outside invasion. Canada’s position was clear – but the U.S. and U.K. was emphatically on the other side that whether or not there were WMDs, the risk justified invasion.
It took courage for Chretien and Graham to explain to Canadians why we were not joining our two closest allies. Now people say it’s a no-brainer – because we look at it retrospectively at the mess it created. It was controversial at time, and the criticism came mostly from Harper, who bought Bush/Blair doctrine. Harper insisted that was where Canada’s interests lay, where our values should take us.
Economic Relations
When it comes to trade relations it was Mulroney, following Royal Commission Report, that took the great leap towards negotitiations on free trade that eventually became NAFTA. Mulroney believed that if we could get from out underneath the U.S. trade umbrella and trade harrassment it would be a great deal for Canada. We would benefit from coming firmly within an America economic framework, and at the same time free ourselves from trade harassment.
By way of contrast, many people believe our long term protection is not in bliateral protection but with many countries that include the Americans. The history of our free trade is well-known, and we are going to experience its full effects in the next major while.
And we have not been able to free ourselves from trade harassment. The U.S. Senate is based on states where less than 20 percent of population control 50 percent of Senate, and is therefore dominated by agriculture and natural resource interests. The U.S likes to portray itself as supportive of free trade, but it actually relies far less on free trade than any of its trading partners.
This is just another example of where our decisions to make a special deal has actually proved short sighted.
A Foreign Policy that is Our Own Voice
Whether it is on the economic or political side, do we want to have a foreign policy where we find our own voice, or do we see ourselves as essentially being the junior partners in the American enterprise?
In recent days that choice has become very clear and sharp, and a clear example of that is the case of Omar Khadr, a Canadian citizen. He grew up in Afghanistan and was eventually captured and charged in the efforts to kill an American soldier, and has since been incarcerated in Guanatanamo Bay for that last few years.
We have to try to understand what this issue means for Canada. It’s not just about the politics of do we like what he did or was accused of doing. There are two major issues:
- What do we do with child soldiers?
- What do we do with Canadians in these situations?
There have been enormous procedural delays in his trial, with the head of the military tribunal recently being replaced. There have been two recent Supreme Court cases in the U.S. critical of Guantanamo, and how it is being administered by the American government.
They stated that the law of habeas corpus does apply, and that it is not simply possible to incarcerate people without letting them know what htey have been charged with. These are fundamental principles of our justice system. The second case is worth reading simply to review the very basics of habeas corpus and its role in the legal system.
Canada is a signatory to the international treaty aimed at rehabilitating child soldiers. It’s fundamental to get these people out to rehabilitate them to let them continue on with their lives.
Sri Lanka has an issue with this on the rebel side, where people can be recruited as young as 12 and sent into battle by the age of 14 or 15. If you capture them, what do you do? Do you treat them as a soldier, as a child, or as a child soldier?
There are protocols that have to be followed. The U.S. military tribunal has said we are not interested in this, and it does not pertain to the treatment of Omar Khadr.
The Question for Canada
The question for Canada is that we’ve gone along for a long time to see what kind of justice people like Omar Khadr can get. We said, let’s hold judgment until we see what kind of treatment he gets.
And frankly, we’ve seen quite enough.
Senator Obama and McCain have both said they would close Guantanamo, and find another method to try people that are there.
We can also look at the issue of members of the Uighur community of Xinjiang in Western China, which has long issues with the extent of which it is being ruled and human rights issues. How do we respond as a country when dealing with the possibility of courts where we disagree with their approach to a legal system?
In the case of Guantanamo, it puts us in a ridiculous position where the only person thinking Omar Khadr should stay in the U.S. and would get a fair trial in the U.S. is Stephen Harper.
Again, even McCain says it should be closed. This is an absurd position for Canada to be in.
Differing with America is not Anti-Americanism
Mr. Rae also distinguished the mission in Afghanistan from that in Iraq. The U.N. agreed to the mission. contrary to Iraq. We believed we were going there to help set up a new government and support them.
The Liberals would like to change the focus to reflect this interest, away from military activities to training the Afghan army and politically helping the government create a more stable arrangement. The 2011 withdrawal date was what was initially agreed upon by parliament, and when all countries said the mission would come to an end.
These are the principles we should try to apply: that we intervene when we believe it is lawful to do so, and when it is justified by international law.
Canada is not a superpower. It is not an empire, and we do not have imperial ambitions. All we want to do is participate in a stable international world order.
That is why we’ve been such strong supporters of the U.N. The Universal Declaration of Human Rights was drafted by a Canadian after all.
Our interests as a small country, a relatively small power, are different from that of our neighbours. It means we will agree and disagree from time to time. It does not mean we are anti-American, it just means we have different interests.
Get Involved as Law Students
There are many ways you can be involved and engaged in this world.
Your generation has more opportunity to see more, to do more, to be more engaged than any generation in hum history.
Try to make a difference. Find out what gives you passion, and take those ideals and interests wherever you may go.
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