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Will Canada Remain a Leader of Democracy and Diversity?
CANADA - WORLD’S MODEL OF DEMOCRACY AND DIVERSITY?
By Edwin C. Mercurio
More than two decades ago, then Justice Minister Pierre Elliot Trudeau proposed introducing a charter of Rights and Freedom in Canada. Hon. Barry Strayer, a former judge and constitutional advisor to the former helped Mr. Trudeau pen a document that would later form the basis for constitutional change. “This included patriating the constitution from the United Kingdom and introducing a Charter of Rights and Freedoms.”
One of the vitally important provisions of the charter is the section dealing with Equality Rights. This section “was also a watershed in that it was the most fought for right in the charter. The provision was so encompassing that it didn’t come into effect until April 17, 1985, three years after the Charter took effect and Canada’s Constitution was patriated.” (Ontario Lawyers Gazette)
Section 15 (1) of the Equality Rights provision states that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or physical disability.”
“(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
In commemoration of the 20th Anniversary of the Equality Rights section of the Charter, more than 200 constitutional experts and academics gathered for two days here in Toronto to mark the event at a conference entitled “Equality: The heart of a just society, looking back, looking forward.” The event was organized by the Department of Justice, the Ministry of the Attorney General of Ontario and the University of Toronto. The Law Foundation of Ontario and the Law Society of Upper Canada sponsored the event.
The two-day conference was highlighted by the attendance of lawyers, constitutional scholars, activists and politicians, who played a role in the adoption and development of Section 15. Participants looked back at the difficult stages in the coming of age of the Canadian Charter of Rights and Freedoms.
Proposed by Prime Minister Trudeau in 1980, the charter was initially met with some skepticism. The proposed amendments to the Charter were initially done behind closed doors. But Trudeau’s insistence to have the debates televised opened the floodgates to the Canadian public’s interest in the charter. In addition, efforts exerted by women’s rights advocates such as Ms. Marilou McPhedran, Director of Women’s Rights Project at the University of Victoria and Ms. Doris Anderson, then President of the Canadian Advisory Council on the Status of Women resulted in the drafting and adoption of not only “Section 15, but section 28, which guarantees Charter Rights equally to males and females.”
The Hon. Roy Romanov, former premier of Saskatchewan and the provincial Minister of Intergovernmental Affairs at the time of the charter debates, admits that the adoption of the Charter changed the Canadian court’s view of human rights. In so doing, he said, the entrenchment of human rights in the charter protects vulnerable minorities from unequal treatment. Originally, Canada, had statutory human rights protection that were not entrenched, Romanov added. Which meant “there was no guarantee that courts would ascribe a higher value to the protection of human rights over statutes that purported to violate those rights”
Trudeau, according to Romanov saw the harm done to vulnerable minorities if the rights agenda is not politically and socially inclusive. Mr. Strayer and Mr. Romanov cited the equality concerns in Canada in the 1920s and 1930s and the shameful “internment of Japanese Canadians during the second world war, the treatment of Jehovah’s Witnesses in Quebec and Alberta, and Criminal Code provisions targeting communists, which gave draconian powers to the government.”
Former Prime Minister Joe Clark in his keynote address gave tribute to his former nemesis when he said that Trudeau “will best be remembered for the Canadian Charter of Rights and Freedoms.”
Mr. Clark also said that the charter is an important document written by a multitude of hands and was “an act of collective will.” Accordingly, he said, the “transformative impact” of the charter has established Canada as a model of democracy and diversity to the rest of the world.
Former Attorney General Michael Bryant who opened the conference said that the Charter, unlike the Canadian Bill of Rights, is entrenched in the Constitution and is the supreme law of the land, making other laws subject to it. Emphasizing this point to critics Mr. Bryant stated that the “Charter requires this of us and if we don’t do it the courts will.”
However, conference speakers note that Section 15 equality rights provision is “one of the most difficult rights” of the charter. The increasing number of immigrants from third world countries, notably from the Asian continent is considered an important factor.
Mr. Clark said that as Canada’s population becomes more diverse, public policy discussion around the scope of that right will intensify. This diversity will continue to grow, he said, adding that “the pace of demographic change is much faster” in Canada than the US.
Asia has become a growing source of immigrants to Canada in recent years outpacing the number of immigrants from Europe in the latter part of 20th century. Canadian figures estimate that its population coming from abroad is 18.4% compared to 11.1% in the U.S.
This “demographic changes” underway in Canada will dramatically alter the face of the country in the coming years, Clark added.
Already, the top immigrants to Canada are from China, both mainland and Hongkong, India, Africa and the single fourth largest come from the Philippines.
Most of these immigrants possess a high degree of education and training in their chosen professions. However, problems and barriers they encounter such as access to trades and professions, community safety and policing and the ongoing process of de-skilling of professionals coming from these countries due to non-recognition of their skills and credentials will test Canada’s adherence to Equality Rights of the Charter of Rights and Freedoms.
Equality Rights may well be the most difficult rights of the charter. But in the end may prove, indeed, to be the Heart of a Just Society.