In April 1982, Prime Minister Pierre Trudeau realized his commitment to introduce the Canadian Charter of Rights and Freedoms into Canadian law. His achievement would allow the Liberal Party to make claim to be the Charter Party, the party responsible for introducing into our constitution a bill of rights together with the power of the courts to review government action for compliance with those rights.
It has long been assumed that the promise of the Charter is in providing a judicial check on government and Parliament against rights-infringing action.
And it is. The Supreme Court of Canada has struck down legislative prohibitions on physician-assisted suicide, restrictions on judicial discretion in criminal sentencing, prisoner voting bans, and others, in each case finding that interferences with rights and freedoms could not be justified.
But there is another, to my mind more fundamental and more significant, promise in the Charter. It is one that is less celebrated and too often overlooked. It is one that is sometimes overshadowed by the important role of courts under the Charter.
And it is one that the Charter Party is taking very seriously.
That promise is to have government and Parliament actively and consciously committed to the respect, protection, and promotion of rights. It is a promise to situate the Charter’s influence within the workings of government and Parliament. And it is a promise that, on my reading, is embedded in Prime Minister Justin Trudeau’s mandate letters to his ministers.
At times, the Prime Minister uses explicit language to draw our attention to the importance of internalizing a commitment to rights within the work of government.
For example, he instructs his Attorney General to review litigation strategy so that “early decisions” are taken “to end appeals or positions that are not consistent with our commitments, the Charter or our values”. This instruction rightly recalls how the duty to Charter rights rests not only with courts, but with all political actors.
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At other times, the Prime Minister does not employ the language of rights or the Charter, but the commitment to rights is no less transparent.
For example, the Minister of Canadian Heritage is tasked with developing “a new multi-year Official Languages plan to support English and French linguistic minorities” and the Minister of Justice is tasked with reviewing the “changes in our criminal justice system and sentencing reforms over the past decade”. Both commitments are to protect the rights of persons who too often fail to be heard in our democratic institutions.
An overarching message of the ministerial mandate letters are that the rights of Indigenous peoples, seniors, voters, families, persons with disabilities, and others are the responsibility of government. That responsibility includes advancing the cause of rights, as with the Justice Minister’s mandate to “introduce government legislation to add gender identity as a prohibited ground for discrimination under the Canadian Human Rights Act”.
Together, these many commitments affirm the thought that the first and most important responsibility for protecting, respecting, and promoting the rights of Canadians rests with government and Parliament.
In 2005, the Parliament of Canada extended the right to marry to same-sex couples. It took ten more years for the same result in the United States, and there only by virtue of a Supreme Court ruling. As Canadians, we have reason to celebrate not only our much earlier affirmation of equality rights, but also that this recognition came by way of our government and our Parliament and their commitment to rights.
Therein lies the great promise of being a Charter Party and Parliament.