© David Watts 1999
Students of human rights in the western world generally look to one of three countries: the United States, who gave the world its first written constitution based on a separation of powers; France, whose revolution produced a declaration of human rights but 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, responsible government (i.e., control of the executive by an elected house) and a unique synthesis of common, statute and constitutional law in human rights. They grew out of our connections to the above three traditions, overlaps between them, and the unique interfaces that came out of those overlaps.
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 that was previously unheard of in the Empire. Roman Catholics in British North America had the right to spread their faith actively long before Catholics in England had the freedom to do so.
This “favouring” of her French speaking subjects was one of the factors cited by the Thirteen Colonies in their decision to break with Britain. The United states has often claimed to lead the way in religious freedom, largely 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 an amendment. In Canada it had been offered for some time. Religious freedom here was followed by linguistic toleration, in the status of the language spoken by a majority of her Canadian Catholic subjects. Britain had long shown an attitude of cultural toleration both to her overseas colonies and to the various parts that made up the “United Kingdom.” Nowhere did this go as far as in Canada. From guarantees for the French language in Québec at Confederation this grew to today’s policy of bilingualism in Ottawa and in other parts of the federation.
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 Assembly (the elected lower House) in Canada in the early 1840’s. This practice, known as “responsible government” in the parliamentary tradition did not reach Britain herself until the early 20th century, when the powers of the upper House of Lords were finally subordinated to those of the Commons. Canada had done so 50 years earlier.
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 fiercely defend the right to get away with whatever they can. This they call 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 a 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 have generally been paternalistic ones—the USSR, the Austro-Hungarian Empire, the Roman Empire earlier. Such empires have given the world many things, but populat democracy is not one of them.
Populism has thrived when there is a measure of homogeneity. Populist revolutions and protests have come out with ringing declarations and appeals that have moved masses to action. But because of the simplism of these appeals—in order for them to be moving—they 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 first—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 the colonialism of the Quai d’Orsay to Whitehall to the Rideaux. 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.