A. The Enactment of the Charter

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 411-418

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Following the end of the Second World War, there was growing international support for the concept of constitutionally protecting human rights. In 1948, the United Nations adopted the Universal Declaration of Human Rights¹and, over the next few decades, human rights protection was incorporated in a number of international covenants and conventions,²as well as in the domestic constitutions of many states. In Canada, this international trend was reflected in the enactment of the Canadian Bill of Rights in 1960,³as well as the adoption of human rights codes at the provincial and federal level.⁴However, the Canadian Bill of

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Rights and the provincial and federal human rights codes were not constitutionally entrenched. Furthermore, the Canadian Bill of Rights was a federal statute and could not be applied to matters within provincial jurisdiction. Moreover, the Bill was interpreted in an extremely narrow fashion by the judiciary. From 1960 to 1982, claimants invoking the Canadian Bill of Rights were successful in just five of the thirty-five cases that reached the Supreme Court of Canada. The Supreme Court found that a provision in a federal statute was inoperative in just one instance.⁵Following his election as prime minister in 1968, Pierre Trudeau attempted to obtain the support of the provinces for the enactment of an entrenched charter of rights that would be constitutionally binding on both levels of government. Trudeau initiated a three-year process of constitutional negotiations with the provinces that culminated in May 1971 with the drafting of a "Canadian Constitutional Charter," commonly referred to as the Victoria Charter. The Victoria Charter, which included guarantees for political rights and language rights, was approved in principle by the premiers of all ten provinces at a meeting in Victoria on 16 June 1971. All eleven governments were to indicate by 28 June 1971 whether they approved the draft Charter without further amendments and whether they would submit it to their respective legislatures for approval. While eight of the ten provinces subsequently approved the draft Charter, Quebec and Saskatchewan were unwilling to proceed without amendments, which put a temporary end to the constitutional discussions.

Despite the failure of the Victoria Charter, Trudeau remained committed to the constitutional entrenchment of a charter of rights. In the May 1980 Quebec referendum, Trudeau had promised "renewed federalism" in return for a vote against the Quebec government’s proposals for sovereignty association. When federal-provincial negotiations over the summer and early fall of 1980 failed to produce a consensus on con-

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stitutional reform, Trudeau introduced a parliamentary resolution in October 1980, which included a proposal for a charter of rights.⁶The proposed charter of rights sparked a fierce political debate over the 1980-82 period. On one side of the debate were those who argued that a charter of rights would transfer undue power from elected politicians and into the hands of unelected and unaccountable judges. Premier Allan Blakeney of Saskatchewan was perhaps the most articulate critic of an entrenched charter. Blakeney’s concerns over the charter stemmed from his social democratic principles and the belief that the state was a positive instrument for achieving social justice and equality.⁷For Blakeney, a charter of rights would expand the authority of unaccountable and socially conservative judges, who would thwart the redistributive goals of the state. Blakeney was particularly troubled by the American experience with the Bill of Rights during the "Lochner era" in the early twentieth century, in which the U.S. Supreme Court rolled back a wide variety of socially progressive statutes.⁸For Blake-ney, the legislature was the appropriate body to balance individual and collective interests. Blakeney believed that rights are best protected by Parliament and not by a constitution that is interpreted by the courts.⁹

In the end, Blakeney was prepared to accept an entrenched charter of rights only if it included a "notwithstanding" clause, which he believed would permit legislatures to ensure that the courts did not unduly limit the choices made by elected politicians.¹⁰

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Blakeney was not the only premier to express concerns about the increased judicial power associated with an entrenched charter. Manitoba Premier Sterling Lyon was ideologically opposed to the Charter, fearing that it would undermine the doctrine of parliamentary sovereignty and the role of the monarchy in Canada, while Alberta’s Premier Peter Lougheed feared it would undermine the autonomy of the provinces.¹¹Even Prime Minister Trudeau, the ultimate champion of the Charter, seemed extremely sensitive to the dangers associated with judicial limits on parliamentary sovereignty. The federal government’s original draft of the Charter, tabled in the House of Commons on 2 October 1980, appeared to offer relatively limited protection for individual rights.¹²For example, the limitation clause in the original federal version stated that rights under the draft Charter were subject to such "reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government."¹³This language appeared to be an attempt to continue jurisprudence built up under the Canadian Bill of Rights tolerating established or accepted limits on individual rights.¹⁴Despite concern by governments and first ministers, the idea of an entrenched charter was supported by a wide variety of interest groups and legal activists. For these groups, the primary concern was to strengthen and expand the guarantees of rights found in the draft proposed by Trudeau. A campaign was mounted in the parliamentary committee hearings held over the winter of 1980-81 designed to remedy what was described as a "seriously flawed" document.¹⁵Women’s groups, civil liberties organizations, ethnic and racial minorities, the disabled community, and even Canada’s human rights commissioner all urged the federal government to go back to the drawing-board and produce a charter that would have real teeth. This grassroots campaign proved to be remarkably effective, and led to a variety of amendments, designed to strengthen the rights guarantees.¹⁶

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Interest groups and activists supporting the Charter did not particularly voice concerns over the potential increase in judicial power. To the extent that judicial...