Seminar on Constitutional Law at Ottawa University

On May 3, 2005, a delegation of Members of Knesset from the Constitutional Committee attended a seminar at the University of Ottawa (organized by Professor Joseph Magnet) on the Canadian Charter of Rights and Freedoms. Topics discussed included the creation of the Charter of Rights and Freedoms Constitutional Dialogue, Justiciability, the Notwithstanding Clause, and Judicial Appointments.

Roger Tasse (Deputy Minister of Justice at the time of the passing of the charter) introduced the history of the charter’s creation and early years:

The 1976 election of the separatist Parti Quיbיcois, whose central platform called for a referendum in Quebec on secession from Canada, deeply troubled Canadian Prime Minister Pierre Trudeau and increased motivation for constitutional reform. The prospect of constitutional reform was seen by many Quebecois as a viable alternative to independence, and was key in the referendum’s defeated in 1980 by a vote of nearly 60% to 40%. This gave Trudeau a renewed mandate for Federal Canada and began a 2-year drafting process for the Canadian Charter of Rights and Freedoms, a process which involved intense discussion in the House of Commons, the public arena, and in the government.

At the time of the referendum’s defeat, the Prime Minister called on provincial premiers to negotiate a new constitutional arrangement. Using experience garnered from case law, common law, and international experience, they endeavored to create a truly Canadian bill of rights, assimilating the best of Europe and America but not copying their constitutions. Rooted in the Canadian experience, Tasse said of the Charter: “It’s not perfect; it’s Canadian.”

The Prime Minister established a joint committee of the house and the senate and assigned to them the mission of advising him how to push the charter through the political process. This committee heard testimony and received recommendations from hundreds of individuals and groups in Canada, ultimately incorporating nearly half of the suggestions they received in some form or other. This period was called “The Year of the Constitution.” The charter today is very different from the one the Prime Minister originally proposed as a result of the Canadian people’s input.

Committee Chairman MK Michael Eitan (Likud) asked how the Canadian government had garnered the necessary support within parliament for the charter to pass. Roger Tasse answered that the key to the charter’s success the popular support it enjoyed, and that its existence was about limiting the power of the state. The government had to persuade the public that its intention was a more disciplined state; if, he added, the constitution had exclusively talked about the division of powers and the structure of government, it would have failed. Structural issues don’t galvanize people – a charter of rights does.

Roger Tasse believed that the charter was a response to a nationalist-separatist movement in Quebec. Trudeau wanted to do something to rally Canadians – including Quebecois – around Canada, and he thought his broad, intelligent government could potentially pass a constitution.

He added that many Quebecois like the charter, although it does bind them. The people of Quebec did not reject the charter so much as their assembly did. Professor Errol Mendes (Faculty of Common Law, University of Ottowa) added that one of the main reasons for the success of the charter was the involvement of the people in the process; something that the Knesset should emulate above all else.

Daniel Turp (Quebec National Assembly member, separatist) said that although the charter may act as a unifying force within Canada, the process of its drafting led to very deep divisions. Indeed, the constitution is still not accepted by all parties in Quebec, as no Prime Minister in Quebec has formally ratified the constitution. Indeed, although Quebec has its own charter of rights (very similar to the federal one except regarding linguistic issues), the imposed constitution didn’t sufficiently represent Quebec’s interests.

Roger Tasse noted that there was a human rights court with the explicit mandate of protecting the Quebecois. In drafting the Charter, however, Prime Minister Trudeau announced that Canada needed to offer a more entrenched and fundamental protection of Quebecois rights than the court itself provided. Initially, he believed there should be a referendum on the charter, with the options of alternative charters or no charter at all.

MK Yuli Tamir asked for several examples of specifically Canadian elements of the charter. Roger Tasse argued that the constitution was a very different creature from the US Bill of Rights. For instance, the Canadian Charter explicitly states that rights are not absolute, and includes a limitations clause[1]. There also exists a notwithstanding clause. Daniel Turp countered that these were not uniquely Canadian as they exist, for example, in international treaties. Instead, it was Canada’s minority rights and linguistic issues that are unique.

Professor Errol Mendes asked whether Israel had something tangible upon which to build its charter. MK Michael Eitan answered that some statutes written by the Knesset but never meant to act as a constitution were defined by the Court as a written constitution [during the Constitutional Revolution of 1992] in an act of judicial activism. Despite this activism, MK Eitan said, he had little issue with the courts as they had given the country some of its most basic rights during that time, as the Knesset had failed to guarantee basic human rights (such as freedom of speech) to Israel’s citizens. Indeed, he noted, the court had successfully filled a leadership vacuum. He added that he, and many within the Knesset, held mixed feelings towards the court. They respected the decisions and the basic democratic values laid down by the judiciary, but resented the excessive wielding of its power in the last decade.

Professor Errol Mendes stated that in Canada, there had been experiences with the balancing of individual and collective rights. He asked how, in Israel, the tension has manifested itself. MK Eliezer Cohen (Ichud Leumi), stated that this tension has mostly been manifest in minority rights and Arab education.

MK Naomi Blumenthal (Likud) asked what caused the constitution to pass in 1982. She added that she believed that in Israel the situation was not yet ripe for a constitution, the Prime Minister himself remaining unconcerned by the constitution process in Israel. The question of the Court-Knesset rift [a main reason for the constitutional project] did not deeply concern the populace.

[1] “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Canadian Charter of Rights and Freedoms, Section 1)

Peter Hogg (York University Law School) began by explaining that there were three provisions within the constitution for judicial review:

1. The Supremacy Clause of the Constitution Act of 1982 (section 52: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect… The Constitution of Canada includes… this act [the Canadian Charter of Rights and Freedoms].”)
2. Limitation clause (section 1 of charter)
3. Override clause (“Notwithstanding” clause – section 33).

The latter two represent a compromise formulated in 1982 between the federal government and the provinces. Since 1982, over 80 laws have been struck down for breach of the charter and its inherent rights. Usually, though, if parliament feels strongly about the law, it may pass it anew, in a way that does respect the charter, either by modifying the new law to comply with section 1’s “reasonable limits,” making it more accommodating of the charter’s civil rights; or by using the notwithstanding clause (which has only really occurred three times) to overcome the court’s ruling directly. Sections 1 and 33 give dialog to the courts and legislatures, provisions that have proved sufficient in the majority of instances.

The Notwithstanding clause has only really been used once in a significant way (there were two minor usages of it early on), by Quebec, in order to protect a law requiring public signs to be exclusively in French. Hogg believed that the 5-year limit has a real purpose, saying that issues often become muted and ideological stances moderated with time. In the case of Quebec, at the end of the 5 years the language tensions had subdued and, rather than reenact the Notwithstanding Clause, Quebec moderated its law, finally passing a more moderate version that could pass using just section 1.

MK Yuli Tamir asked why the notwithstanding clause died a muted death. Hogg replied that the Notwithstanding Clause proved deeply unpopular with human rights groups, the media, and other organizations.

Daniel Turp (Quebec National Assembly member, separatist) countered that both the Limitations and Notwithstanding clauses were inherently positive, although neither clause applies to all rights equally. Some rights are absolute, and are mandated as such by international agreements to which Canada remains party. He urged the Knesset to be consistent in its law, and make sure that notwithstanding or limitation clauses apply only to those rights to which they can be reasonably applied.

MK Eitan outlined the Constitutional Revolution of 1992 in Israel, and how it was unexpected that Chief Justice Barak would claim 23 months later that the Knesset had just permitted the creation of a constitution. The academy, by siding with the court, had given it legitimacy.

Professor Lorraine Weinrib (University of Toronto Law School) asserted that the 1992 Basic Laws seem, to an outsider, to have a different significance than they actually do in Israel: to an outsider the selection of these Basic Laws as the first rights within a Bill of Rights makes sense in the context of the Harari decision. [the 1949 decision to delay drafting a full constitution progressing, instead, with a series of Basic Laws]. She stressed that the constitutional process should act as a manner of deciding which of the judicial and legislative branches’ decisions, have been positive, and which have been negative. [In essence, to assure that the baby is not thrown out with the bath-water in the drafting of the constitution.]

MK Yuli Tamir explained that Israel began as a common law society, and that it should naturally rely on precedent. But, she added, the courts have become controversial over the last decade. And when the court began to be seen as not only interpreting but also recreating the legal system, the Knesset found itself considering ways to limit the process. The Knesset, he believed, needed a process to amend the law rather than leave it entirely in the hands of the court. That attitude, he claimed, was a direct result of the court’s behavior.