30 Years of the Charter: Is it ‘Just Words’?

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Bradley Por, LAW III

This April, Canadians will celebrate the 30th anniversary of the patriation of Canada’s constitution from Britain, and the adoption of the Canadian Charter of Rights and Freedoms. The Charter has come to assume a lofty position in law, politics, and in the public’s eyes. It has become the centrepiece of our legal order, and a default point of reference for making the claim that to be Canadian means to be free.

Three decades of Charter jurisprudence have produced a number of significant wins for rights-seeking claimants. This belies the pessimism of those who predicted it would prove to be a document with no muscle. Nevertheless, the nearly sacred view of the Charter in Canadian law tends to mask its limitations, so it is important to place it in context, and assess what social functions the Charter actually serves.

In 1997, UBC’s Faculty of Law professor, Joel Bakan, wrote a book entitled, Just Words: Constitutional Rights and Social Wrongs, which made the argument that the Charter, despite its just words, had done little to advance social justice in Canada. Prof. Bakan wrote, “The emancipatory and egalitarian potential of the Charter ultimately depends on the social and historical circumstances surrounding its use.” From this perspective, the Charter does little work on its own to disrupt entrenched power structures or status quo social norms that perpetuate social wrongs.

In 2012, Prof. Bakan’s critique of the Charter remains highly relevant. On the other hand, some strong and progressive Charter decisions have come down from the Supreme Court of Canada in recent years. The unanimous decision to uphold the right of InSite to continue providing needle exchange services in the Downtown Eastside of Vancouver (Canada (AG) v. PHS Community Services Society, 2011 SCC 44) is an example. In PHS, the court cited Charter section 7 as one of the grounds for upholding Insite’s right to provide needle exchange services in the Downtown Eastside of Vancouver. This was seen as a major victory for some of the most marginalized people in Canadian society.

However, while PHS left the door open at least a crack for similar facilities to be legally established in Canada, the court was still fairly careful to limit the scope of its decision to the InSite location. Its effect was to prevent the government from closing down an already existing, life-saving medical facility. The decision has limited impact on the core problems of racialized, gendered, and class-based oppression which are at the root of the crisis in the Downtown Eastside. Significant social, not merely legal, change is required to tackle these underlying issues.

The position of organized labour in Canadian society also reflects the Charter‘s limits as an engine of social justice. There have been a series of successes in court for unions asserting rights under s. 2(d) freedom of association and s.2(b) freedom of expression.

In 2004, the Supreme Court’s decision in BC Health Sevices (2007 SCC 27) affirmed a constitutional right for workers and unions to engage in collective bargaining under s. 2(d) of the Charter. This dramatically limits the potential for union activity to be restricted through legislation. But this legal victory does not mean that organized labour has suddenly become stronger in Canada. When one looks at how the power of unions vis-à-vis large employers has declined over the past few decades, and the hostile approach federal and provincial governments continue to take towards public sector unions, it is hard to argue that this case has tilted the balance of power in unions’ favour.

The Supreme Court has also avoided pushing organized labour rights too far. Last year, in Ontario(AG) v. Fraser (2011 SCC 20), the court upheld provincial labour legislation which created a separate, and significantly weaker, regime of rights for agricultural workers, without the full range of collective bargaining rights other workers are granted. The legislation was seen as consistent with the court’s decision in BC Health Services on the grounds that a right to collective bargaining did not entail a right to participate in any particular form of collective bargaining. Agricultural workers, most of who are racialized minorities with low incomes, were left with limited rights to organize and bargain collectively. This legislation hampered the workers’potential to better their employment situation through collective action.

The position of unions in Canada highlights the degree to which progress for weaker groups must come from real social change, and why social justice proponents cannot simply rely on the law. The Charter protects a very specific set of rights that can be asserted, by individuals, against the authority of the state. The Charter’s ability to advance the interests of marginalized groups, and to induce positive change, is severely limited. Recognizing a right to collective bargaining, based in the individual’s rights to freedom of association, only prevents the government from legislating away bargaining rights to further weaken unions. It does not create a real platform for organized labour to enter a new era of power and influence to advance workers’ interests.

The truth is, no matter how it is interpreted, law cannot be the source of social justice. There is no replacement for collective political action to push for progress. But in a country built on liberal principles, with the rule of law, we often talk as if our rights are everything. This is reflected in Canadians’ veneration of the Charter.

As the third decade of Charter jurisprudence comes to an end, there is much to reflect on how the Charter has actually served, or failed to serve, the quest for social justice. If we  put it into perspective, we can recognize that, for many marginalized people in Canada, life is no better under the Charter than it was before.

It should also be remembered that for First Nations, Canadian law has been imposed without consent. While Aboriginal and treaty rights have been “recognized and affirmed” by s. 35 of the Constitution Act, 1982, the Charter affects and informs the application of law generally, and the test for determining whether an Aboriginal right has been infringed bears a striking similarity to the Oakes test employed in Charter jurisprudence. The Charter is often viewed as the source of legal freedom and equality in Canada, but it does not play a key role in the pursuit of justice for Aboriginal peoples.  Social justice in Canada demands reconciliation of the wrongs done to Aboriginal peoples by the assertion of Canadian sovereignty over their territories. This reconciliation cannot simply come through interpretation of the colonizers’ law. Aboriginal legal traditions reflect a different approach to justice than the one articulated in the Charter. Holding up the Charter as the pinnacle of law in Canada helps reinforce the profound injustice which underlies Canada’s emergence as a nation. True reconciliation must come from political and social change that recognizes First Nations’ sovereign claims, and the Charter can do little to advance this cause.

So as we celebrate the Charter‘s anniversary and as another year of law school draws to a close, we should recall that law is, as Prof. Bakan suggested, just words. The law can be altered and employed in progressive ways. But in order for power imbalances to be reversed, the systems of power law functions to support must be tackled head on. Canadians cannot rely on the courts and the Charter to right social wrongs; they must be willing to take collective, direct action, and make progressive change in their own lives.

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