The New Charter of Rights and Freedoms and Canada’s Obligations under the International Bill of Rights

By Christina Tzovanis Manolias

As one of the principal architects of the Universal Declaration of Human Rights, there is little doubt that John Peters Humphrey devoted substantial attention to the issues of human liberty and freedom. For years following the declaration’s adoption in 1948, Humphrey remained deeply preoccupied with the implementation of human rights legislation. This notion is clearly evidenced in Humphrey’s “The New Charter of Rights and Freedoms and Canada’s Obligations under the International Bill of Rights.” Penned in the early 1980s, the work lays out the inconsistencies between Canada’s Charter of Rights and Freedoms and the Universal Declaration of Human Rights and its covenants. Humphrey’s comparative analysis of these pieces of legislation reveals that on multiple counts, the drafting of the Canadian charter failed to incorporate human rights principles proclaimed by the UDHR and its covenants. Along with revealing the tensions that exist between international and national law, the content of Humphrey’s work suggests that the Canadian Charter of Rights and Freedoms, from its inception, was rather circumscribed in its adoption of human rights principles.

Humphrey’s essay illuminates the incongruities that exist between international and national legal jurisdictions. Perhaps most notably, the author’s interpretations illustrate that the measures designed to implement the rights stipulated within the UDHR and its covenants were insufficiently robust. As Humphrey’s analysis reveals, states that ratified the declaration along with its covenants, like Canada, were under no explicit legal obligation to entrench these laws within their respective constitutions. In Humphrey’s words, “There is no rule of international law which says that our international obligations must be reflected in the constitution.”[1]Consequently, international statutes were not necessarily woven into, or enforced by, a state’s constitutional policies. Humphrey’s point touches upon the absence of uniformity among legal jurisdictions, rendering national and international legislation irreconcilable. The author’s observations infer that due to the absence of precise legal measures, a state’s constitutional laws may, in fact, compromise the enforcement of human rights. It is precisely this concern that prompts Humphrey’s detailed analysis of the Canadian charter.

The author’s comparison of the Canadian Charter of Rights and Freedoms with the UDHR and its covenants is grounded in certain stipulations outlined by these legal instruments. As noted by Humphrey, Article 2 of the Covenant on Civil and Political Rights requires that state parties “take the necessary steps, in accordance with their constitutional processes, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized by the instrument.”[2]Thus, even though state parties were not legally obliged to enshrine international legislation into their respective constitutions, they were indeed compelled to respect certain international standards. Furthermore, one of the principal intents of the Canadian charter was to provide equality before the law for individuals who had traditionally faced discrimination because of their “race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”[3]Thus, when considering the charter’s premise and the international standards to which Canada was bound, Humphrey’s comparative analysis aims to determine the degree to which the 1982 charter reflected international human rights legislation.

The author’s interpretations reveal that the Canadian charter was limited in its integration of human rights legislation as outlined by the UDHR and its covenants. Humphrey first criticizes the charter for its failure to clearly establish permissible limitations on the rights it lays out: “Neither does it [the Canadian charter] adequately deal with the matter of permissible limitation on the exercise and enjoyment of the rights proclaimed by it or of derogations in time of national emergency. There is indeed no mention in it of such emergencies, and the War Measures Act is still on the statute book.”[4]Failing to model itself on the language of the Covenant on Civil and Political Rights, the Canadian charter granted greater discretion to the courts to ultimately decide what constituted a permissible limitation on rights. This is problematic for multiple reasons. Firstly, whereas the Covenant on Civil and Political Rights considers certain freedoms to be so fundamental that they must be respected even in times of emergency such as the right not to be subjected to torture and the right not to be enslaved, these receive no mention in the charter. Second, the vague formulation of permissible limitations as inscribed within the charter consequently suggests that individual human rights may be violated as the government sees fit.

But perhaps the most glaring shortcoming of the Canadian charter is evidenced in Article 33 which outlined that: “Parliament or the legislature may expressly declare in an act of Parliament or of the legislature, as the case may be, that the act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”[5] It is precisely these sections that outline liberties related to the freedom of religion, expression, association, and the like. Thus, the charter, in its formulation, held little guarantee for safeguarding such rights. Though lawyers and academics alike have debated the repercussions of the infamous “notwithstanding clause,” the intricacies of this issue lie beyond the scope of this analysis.[6] Rather, Humphrey’s observations indicate that the integration of human rights legislation in Canada has been profoundly limited by the reification of sovereign  authority.

The jurist’s impassioned analysis penned sometime in the early 1980s- this chronology is reasonably assumed as the author alludes to the document as “the new Charter”- offers more than a scathing critique directed at the charter’s draftees. Rather, Humphrey’s work is a significant reminder of the inconsistencies and dilemmas that persistently thwart the implementation of human rights legislation. Humphrey’s interpretations draw attention to the inherent power struggle that exists between international and national legal jurisdictions. The author illustrates how, at least within the Canadian context, sovereign authority can still sidestep and altogether override international obligations. For anyone even mildly familiar with Canada’s initial attitudes to the UDHR, this is perhaps unsurprising. Indeed, from its inception, the political right regarded the UDHR with great hostility and the Canadian government approved it with substantial reluctance.[7] Bearing this in mind, Humphrey’s analysis of Canada’s 1982 Charter of Rights and Freedoms illuminates important continuities with the past. The vague language of permissible limitations, the authority extended to the courts, as well as the “notwithstanding clause” together carry on the tradition of sovereign supremacy. Though attitudes towards human rights have undoubtedly evolved in Canada since 1948, Humphrey’s work is an important reminder that it would be a mistake to presume that legislative procedures have followed the same trajectory.

 


[1] McGill University Archives, John Peters Humphrey Fonds, MG 4127 C.18 F363 – The New Charter of Rights and Freedoms and Canada’s Obligations under the International Bill of Rights (item)

[2] Ibid.

[3] J.M. Bumsted, The Peoples of Canada A Post-Confederation History (Don Mills, ON: Oxford University Press, 1992), 538.

[4]McGill University Archives, John Peters Humphrey Fonds, MG 4127 C.18 F363 – The New Charter of Rights and Freedoms and Canada’s Obligations under the International Bill of Rights (item)

[5] Ibid.

[6]Bumsted, The Peoples of Canada  (Don Mills, ON: Oxford University Press, 1992), 539.

[7] A.J. Hobbins, “Eleanor Roosevelt, John Humphrey, and Canadian opposition to the Universal Declaration of Human Rights,”International Journal 53, no. 2 (1998): 338-9.

 

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