Joint session with the Canadian House Justice Committee

On May 2, 2005, Canada’s House Justice Committee hosted the Constitution, Law, and Justice Committee for a joint, informal session. The format was question-answer, with Israelis asking the questions.

Committee Chairman MK Michael Eitan:
Why does Canada have a series of constitutional acts rather than a single comprehensive constitution?

MPs Vic Toews, Serge Menard, and Richard Marceau
All agree that it was primarily for historic reasons. Canada was founded by a British Constitutional act in 1867, which defined the structure of government and serves Canada to this day. The Charter of Rights and Freedoms was ratified in 1982, to serve as a bill of rights. Additionally, each province has a constitution and bill of rights as well, many of which predate the charter of 1982, so there was never a pressing need for one document.

MK Eti Livni:
Judges in Canada are nominated by the Prime Minister after consultation with the Justice Minister, who himself utilizes confidential, non-binding advisory committees to recommend candidates. How can you have politically nominated judges?

MP Toews:
In Canada, advisory committees can review the list of nominees and make recommendations to the Justice Minister and Prime Minister, but neither the Justice committee nor parliament cannot veto a candidate. The advisory committee can knock candidates out before they reach the final selection stage, but no one can override the prime minister’s discretion.

MK Yitzhak Levy:
What is the purpose of the Charter if any province can override it by legislating a bill with the override clause?

MP Serge Menard:
There are provincial charters and federal charters. The provincial charters of rights extend only so far, but they are more detailed.

MK Eliezer Cohen:
What do you advise us to do regarding constitutional court? I am afraid of our current supreme court, and if is the body which ends up interpreting our constitution, I will not vote for it. Shouldn’t we follow the European example of constitutional courts? MK Eitan added:
Our Supreme Court is very powerful. Its reach is ubiquitous (“Everything,” Chief Justice Aharon Barak has declared, “is justiciable”), and its members nominate their own successors.

MP Toews:
Perhaps one solution is to render the notwithstanding clause totally ineffective, and just make parliament supreme a priori. This would mean that the Court would lose the ability to strike down legislation.

MK Yuli Edelstein:
Has religion and state ever been a major issue for you? Also, can you give us a concrete example of what is under federal jurisdiction and what is provincial?

MP Toews:
We have never focused much on religion aside from guaranteeing freedom of religion. But recently we have started to see the question of what happens when equality rights clash with religion rights. As I see it, equality rights are the new religion of the court, and they usually trump. Freedom of religion is being constricted. For example, teachers who object to same-sex marriages are being disciplined for failing to teach it. There has also been an erosion of provincial rights by appointment of pro-federal judges.

Chairman Paul DeVillers:
On the other hand, consider this: no one has ever used the absolute gender equality clause in the charter to impose the ordination of female priests on the Roman Catholic church.

MK Yuli Tamir:
I am surprised that there are no social or economic rights in the Canadian charter – after all, it is a social welfare state, like Israel. Where are these rights enshrined? And can you tell me about the development of minority rights, and the differences between immigrant minority and aboriginal minority rights?

MP Menard:
Social and economic rights are in the provincial laws.

MP Marceau:
Yes, provincial charters of rights and freedoms have social and economic rights that bind the government’s legislation as well. Different provinces have subtle differences.

Committee Chairman MP DeVillers:
Canadians generally accept that democracy is not just majority rule. Minority rights are entrenched in both the charter and Canadian culture.

Professor Asher Maoz:
Your preamble includes the phrase “Under the supremacy of God.” How is this expressed?

MP Marceau:
I think it has little impact in law. Because you have to choose a god, and we have a separation of church and state.

MK Edelstein:
Will the constitution help or hurt on religion and State? On federalism vs. minority rights in the provinces?

MP Toews:
I support the section 15 equality rights, but the court has read a lot into them and expanded the rights. We have been governed by section 15 for 20 years, but we’re still embroiled in ethical problems. Ethical government is not guaranteed by a charter, it’s guaranteed by democracy. Yes, equality rights should be in the charter. But who restrains the court? Which is the body which has to evaluate that clash of values? In my opinion the best mechanism to determine those conclusions in Israel must be the parliament, the accountable elected officials, not the justices.

Do not look to the override clause for a solution. You will not be able to use it. The issue is who makes the final decision, and what is the right way to balance the oligarchy of the court and the democratic parliament. We all agree there should be a written constitution, but the question is who sets its guidelines.

Be careful about what rights you protect in the constitution that the court will then expand at its discretion. You should explicitly make the list exhaustive, so that parliament is the body which decides on the expansion of rights. Laws are always, by their nature, discriminatory in some way. But sometimes it’s legitimate and sometimes it’s not. We have to decide in what contexts the courts can and cannot decide the rules.

MK Edelstein:
Then why wouldn’t an override clause work in such a situation? Why couldn’t an override clause work in place of an exhaustive list?

MP Toews:
The answer is political, not constitutional/legal. It’s all about whether you agree with the issue and decision.