CANADA’S HUMAN RIGHTS TRADITION © David Watts 1999
Students of human rights in the western world generally look to one of three countries: the United States, that gave the world its first written constitution based on a separation of powers; France, whose revolution produced a declaration of human rights and also spawned the Terror; and Britain, who muddled from incident to incident, gathering statutes and precedents, snowball style, to give today’s world model of Parliamentary democracy.
Few realize that Canada has contributed a number of Firsts to the human rights tradition.
These include religious and then linguistic liberty. They include responsible government (control of the executive by an elected house of the legislature) and an unusual synthesis of common, statute and constitutional law that came to serve human rights.
These contributions grew out of our connections to First Nations, American, British and French traditions, and a unique interface that came out of the overlaps between them.
Canada’s constitutional evolution led the world in freedom of religion. Having acquired a French Catholic colony in Québec, Britain granted her new subjects a degree of toleration previously unheard of in the Empire. Roman Catholics in British North America had the right to spread their faith actively before Catholics in England had the freedom to do so.
This “favouring” of French speaking subjects was one of the factors cited by the Thirteen Colonies in the decision to break with Britain. The United States often claims to lead the way in religious freedom, as a result of the dissenting groups that came to the Colonies from Britain. However, these dissenters were often very intolerant of other viewpoints.
Freedom of Religion was written into the American Constitution as a 1791 amendment. In Canada it was affirmed in the 1774 Quebec Act. Linguistic toleration derived from this, in the status of the language spoken by a majority of Canadian Catholic subjects.
Britain had long shown an attitude of cultural toleration to her overseas colonies that in time came to apply to various parts of the “United Kingdom.” Nowhere did this go as far as in Canada. Guarantees for the French language in Québec at Confederation grew to become today’s policy of bilingualism in Ottawa and in other parts of the federation.
The quest for human rights in Canada ran in tandem with that for political rights. As a result of protests by Joseph Howe in Nova Scotia and of other reformers in Lower and Upper Canada, Britain conceded control of the Executive (Governor and Council) to the elected Assembly in Canada in the 1846, a practice known as “responsible government.”
Though Britain had had parliamentary government for 80 years, her hereditary upper house had a veto over the Commons until the early 20th century. Responsible government in Canada established the primacy of our elective house 60 years earlier. This grew out of a partnership of English and French speaking members committed to human rights.
Finally, in the legislative override provision of our Charter of Rights and Freedoms, Canada offers a unique overlap of legislative and judicial power.
For years advances in human rights had come about by executive action or legislation. Politicians shied away from entrenching them. (Once elected, most politicians defended the right to get away with whatever they can. They called this Legislative Supremacy!)
The differences in outlook between the parts of the country seemed to stand in the way of our ever reaching agreement from of list of rights that could be accepted Canada wide.
The acceptance of the “notwithstanding clause” (the legislative override provision) by Pierre Trudeau was the concession that broke the constitutional logjam in 1981 and led to the entrenchment of the Charter in a Parliamentary constitution, a unique innovation.
This and all of the above advances had come about as a result of creative compromise—a willingness to adapt political ideals and traditions to subtle and complex relationships between people. Canada has sometimes been accused of a lack of idealism in her politics.
What she has lacked is the stomach to force ideals on people, Procrustes-style. The ideals are there like underground streams, difficult to see or express in slogans or declarations, but there to be tapped into.
Canada’s challenge is to reconcile the individual and sectional in human rights, and populism and pluralism in views of government. Pluralistic societies are generally paternalistic—the USSR, the Austro-Hungarian Empire, the Roman Empire earlier. Such empires have given the world many things, but popular democracy is not one of them.
Populism thrives when there is homogeneity. Populist revolutions and protests come out with ringing declarations and appeals that move masses to action. Because of their simplism—in order for them to be moving—these appeals have usually been at the cost of pluralism, and minorities not in the mainstream have simply been steamrollered over.
Until the past decade Canada was in the pluralistic tradition, not the populist one. We had had populist government at the provincial level but not in Ottawa, where we protected our pluralism with paternalistic governments. We moved from colonialism of the Quai d’Orsay to Whitehall to the Rideau. Our leaders knew best, and kept our factions apart.
This came undone in the collapse of the Mulroney Government and its constitutional initiatives. We have since had populist régimes in Québec, the West and Ontario, each demanding a greater place in the whole.
Can this populism be freely expressed without damage to the pluralism of our national fabric? Simply put, can the parts have their say without tearing apart the whole?
Canada’s record in human rights has come out of this challenge. Our Charter—as did Magna Carta in its time—offers other régimes around the world a possibility to stretch without breaking.