Canadians don’t equate Charter values with Canadian values, while more than two Canadians out of three would support an amendment to include same-sex rights, as well as property rights, in the Charter of Rights and Freedoms. As for the most controver- sial component of the Charter, the notwithstanding clause, only half of Canadians have even heard of it.
These were the main findings of an SES Research poll, conducted exclusively for Policy Options, to coincide with the McGill Institute for the Study of Canada conference ”œThe Charter @ 25.”
We wanted to drill down deeper than previous polls which, to no one’s surprise, found overwhelming support for the Charter. Who could be against rights and freedoms, especially the rights of individuals as opposed to the powers of government?
In November 2006, we asked further questions, such as whether Canadians thought the Charter was moving the country in the right direction or the wrong direction, and why; whether the courts or Parliament should have the last word on rights issues; whether sexual orientation should be added to the equality rights clause; and whether property rights should be included in the Charter.
We also asked Canadians if they were aware of the notwithstanding clause allowing the legislative branch to override the courts, and whether Ottawa and the provinces should have this power. Only 49 percent said they knew about it, and nearly 48 percent said they were unaware of it.
Much has been made of equating Charter values to Canadian values, but we found that the Charter is by no means central to Canadian identity. Even among Charter supporters, unprompted, only 5.3 percent, one Canadian in 20, thought the Charter ”œmakes Canada a great country.” And among those who said the Charter was moving the country in the right direction, only 3.1 percent said it because the Charter ”œReflects our values.”
”œCharter values equal Canadian values” simply doesn’t resonate as a top-of-mind view for Canadians. And among critics, only 0.4 percent, fewer than one Canadian in 200, thought that the Charter makes Canada too much like the United States. So Canadians even more forcefully reject the suggestion of the Americanizing influence of the Charter.
To begin with, on the question of the direction in which the Charter is moving the country, 58.2 percent of Canadians thought it was moving in the right direction, while 26 percent said it was moving Canada in the wrong direc- tion and 15.8 percent were unsure.
This is what we call the thumbs-up, thumbs-down question, and fewer than 6 Canadians out of 10 gave the Charter a thumbs-up, while 4 out of 10 gave it a thumbs-down or couldn’t be sure.
We saw a clear generational divide on this question " younger Canadians tend to idealize the Charter more than middle-aged and older Canadians.
Fully 64.3 percent of the 18-to-29- year-old cohort believe the Charter is taking Canada in the right direction, while in the 60-plus cohort, 31.3 per- cent thought it was moving the country the wrong way. Regionally, support was strongest in the Atlantic and Quebec (66.5 percent and 60.9 percent, and weakest in the West at 54 percent).
When we asked Canadians why the Charter was moving the country in the right or wrong direction, we received a multitude of answers on both sides of the question.
Fully 28.8 percent said it protects rights and free- doms, while another 17.9 percent said it makes every- one equal or prevents dis- crimination, and 15.9 percent said, quite simply, it works. Another 12 per- cent said it keeps everyone accountable.
On the negative side of the ledger, we saw a laundry list of deficiencies and com- plaints against the Charter and its consequences as opposed to the principles driving it.
Among negatives cited in the wrong direction, 14.3 percent said the Charter goes too far, 12.9 percent agreed it gave criminals too many rights, and another 11 percent said Canadians were losing rights to the rule of minority groups.
When we asked Canadians whether the courts or Parliament should have the final say in rights issues, a clear majority, 54 percent, said the courts, while a significant minority, 31.2 per- cent, said Parliament should have the last word, and 14.8 percent were unsure.
Perhaps surprisingly, the strongest regional support for the courts having the final say was in Quebec at 68.5 per- cent. Yet this can also be interpreted as a classic response of a minority group " French-speaking Quebecers within Canada, and anglophones within Quebec " looking to the courts to pro- tect their rights. In Quebec, 31.5 percent favoured Parliament over the courts, while no one, 0.0 percent of our respon- dents, was unsure. Either this is a statisti- cal anomaly, or everyone in Quebec has an opinion on this question. Support for the courts having the last word was weakest in the West at 48.2 percent, while 31.6 percent thought Parliament should have it, and 20.2 percent were unsure, for a total of 51.8 percent.
In effect, majority support for the courts holding sway nationally is delivered by Quebec, ironically the one province whose legislature has never signed on to the Constitution Act of 1982.
Another point on the question of courts versus the legislative branch: it can also be read, beneath the surface, as a question of judges versus politi- cians. And clearly, the credibility of politicians is in decline, while judges are held in generally higher regard.
We then asked Canadians their views on whether the equality rights provisions of the Charter should be broadened to include specific reference to sexual orientation.
A strong majority, 61.8 percent (50.8 percent support and 11 percent somewhat), supported the inclusion of gay rights among equality rights in section 15 of the Charter. While the framers of the Charter were notably silent on this question in 1981, the courts have gradually been moving in this direction since then, particularly on the question of civil marriage.
Consistent with other surveys conducted by SES, support for same- sex equality rights was strongest in Quebec " nearly three in four Quebecers, 73.1 percent, support (63.4 percent) or somewhat support (9.7 per- cent) compared to other regions of Canada. No surprise there. But in every region of the country, there was clear majority support for adding sexual ori- entation to the long list of categories enjoying equality rights under the Charter.
Then we tested support for the inclusion of property rights in the Charter, an issue that hasn’t been on the public opinion radar screen for years. We found a much greater appetite for including property rights than might have been assumed by the political class.
Even though the question of adding the right to own property to the Charter has not received prominent coverage in the news media, more than two Canadians in three, 68.9 percent, support (57.7 percent) or somewhat support (11.1 percent), while only 14.8 percent oppose (10.5 percent) or some- what oppose (4.3 percent) including property rights in the Charter.
Finally, on the notwithstanding clause " the legislative override of the courts in section 33 of the Charter, only 49 percent of Canadians were aware of it, while 47.7 percent were unaware.
Awareness was lowest in Quebec at 41.6 per cent, as opposed to 58.4 percent who were unaware of the notwithstand- ing clause " again, ironic, in view of Quebec having been the major battleground on this issue when the Bourassa government invoked the override in Bill 178 to set aside a 1988 Supreme Court ruling on the language of signs.
And when we asked whether gov- ernments should have the weapon of the notwithstanding clause in their arse- nal, one Canadian in three, 32.1 percent, said neither the provinces nor the feder- al government should have it, while 30.3 percent thought they both should. Equally, only 13.5 percent thought the provinces alone, and 12 percent thought Ottawa alone, should be able to use the notwithstanding clause.
The public has no clear view on the legitimacy of the notwithstanding clause, of which only half of them are aware.
To sum up, Canadians generally support the Charter, but don’t see it as essential to their Canadian values or identity; a clear majority believe the courts should have the final say in interpreting the Charter, but an impor- tant minority believe Parliament should; there is strong support for including gay equality rights in the Charter, as well as for adding property rights. And Canadians are ambivalent about the notwithstanding clause, while only half of the population even knows of its existence. What emerges is an environment where Canadians may be generally aware of the principles of the Charter but lack an understanding of the mech- anisms that make it work.
Perhaps after 25 years we all need a civics lesson on the Charter.