John Peters Humphrey on the Canadian Charter of Rights and Freedoms

By Brad Wiseman

The repatriation of the Canadian Constitution in 1982 and entrenchment of the Canadian Charter of Rights and Freedoms was a monumental moment in Canadian history that dramatically changed the social, judicial and political landscape of Canada. John Peters Humphrey’s speech, “The New Charter of Rights and Freedoms and Canada’s Obligations under the International Bill of Rights”, delivered on August 3rd 1982 in Toronto, addresses this historic milestone through a critical lens. The historical significance of Humphrey’s speech can be attributed to its content, which provides an important assessment of the protection of human rights in Canada. Humphrey compares the rights enshrined in the Charter of Rights and Freedoms to those which Canada is obligated to protect under international and customary law through the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. Humphrey’s sharp criticism of the Charter exposes its flaws and runs counter to the mainstream patriotic discourse that depicts the Canadian Charter as a model for the world to follow.

Humphrey’s speech was delivered to members of the Canadian Bar Association and the International Commission of Jurists, and was therefore written for an audience well versed in the law. The Canadian Bar Association (CBA) was founded in 1896 and represents members of the legal profession across the country who join on a voluntary basis.[1] The CBA was an important actor in the process of constitutional repatriation, having put its considerable weight behind the entrenchment of a bill of rights in the constitution. This was a considerable change in stance for the Association, which had previously been opposed to entrenchment.[2] The International Commission of Jurists is a non-governmental organization currently composed of sixty judges and lawyers from across the globe, devoted to the promotion of the rule of law and the legal protection of human rights around the world.[3]

In this speech, Humphrey argues that the new Charter of Rights and Freedoms does not fully reflect Canada’s international obligations under the International Bill of Human Rights. In Humphrey’s words, it is “strange and certainly a matter of some consequence” that the Charter, adopted only five years after Canada’s ratification of the two Covenants referred to above, only partially reflects its international obligations under those instruments and under the Universal Declaration of Human Rights, which is a part of the customary law of nations and therefore binding on Canada. Humphrey’s two most significant points of contention in regard to the Charter are its failure to set out precisely when limitations of rights may occur and the omission of certain rights in the Charter that Humphrey deems to be ‘fundamental’. Due to these two shortcomings, Humphrey asserts that the Charter of Rights and Freedoms reneges on Canada’s international obligations.

Humphrey argues that a major difference between the Charter and Canada’s international obligations is the Charter’s failure to set out precisely when limitations of rights may occur. Under section 1 of the Canadian Charter [4], a limitation of rights is subject to a standard of reasonableness set out by the judiciary, meaning that the courts have full authority to arbitrarily determine what may be deemed as a ‘reasonable’ situation for the violation of rights. By way of contrast, Humphrey contends that the drafters of the Charter should have followed the precedent of the International Covenant on Civil and Political Rights by setting out the rights that can never be limited even in a state of national emergency, and by clearly defining what constitutes a state of national emergency. Furthermore, Humphrey expresses grave concerns regarding section 33 of the Charter, the notwithstanding clause, as it gives Parliament and provincial legislatures free rein to violate any right with the exception of democratic, mobility and language rights, by a simple majority vote. Humphrey points out that the notwithstanding clause is not even governed by the standard of reasonableness articulated in section 1, and thus Parliament and the provincial legislatures do not need to wait for a national emergency to restrict or withdraw the most fundamental human rights and freedoms. According to Humphrey, the notwithstanding clause is “directed against the very heart of the Charter” as it legitimizes the violation of even the most fundamental human rights.

Humphrey further critiques the Charter by drawing attention to its omission of certain rights that Canada had previously recognized under international law. Humphrey indicates that while the Charter does protect the use of English and French, it does not, however, prohibit discrimination on the basis of language. Furthermore, Humphrey points to the fact that the first article of each of the Covenants guarantees the right of all peoples to self-determination, while there is no corresponding provision in the Charter. The right to Indigenous self-determination is considered to be the main tenet and symbol of the Indigenous movement, and includes, among other rights, the right to control territory, natural resources, social organization, and decision-making institutions in order to maintain cultures and ways of life.[5] It is especially significant that Humphrey singles out this omission, as Aboriginal peoples in Canada had been calling for self-determination for over a century, and this right had yet to be formally recognized in Canadian law.[6] Moreover, Humphrey indicates that the Charter prohibits “cruel and unusual treatment or punishment”, yet is silent about torture, degrading treatment, and slavery which are all prohibited under Canada’s international obligations under article 2 of the Covenant on Civil and Political Rights. Through these comparisons, Humphrey paints a picture of grave inadequacies in the newly legislated Charter of Rights and Freedoms.

The historical significance of Humphrey’s speech is further evidenced as it stands in diametric opposition to the dominant views and discourse on the Charter of Rights and Freedoms in Canada today. While Humphrey’s assessment was largely negative and critical, the popular discourse regarding the Charter, both at the time of creation and today, is largely celebratory and self-righteous in nature. As Peter Edwards noted in a Toronto Star article on October 1st, 2015, Statistics Canada’s General Social Survey of 2015 found that more than nine in ten Canadians view the Canadian Charter of Rights and Freedoms as an important symbol of Canadian identity. It rated higher than any other symbol in its importance to Canadians. On the occasion of the Charter’s 30th anniversary in April 2012, the Globe and Mail published an editorial by John Ibbitson entitled “The Charter proves to be Canada’s gift to world.” The editorial argued that the Charter serves as a model for the world to follow. Similarly, Jean Chretien, Canada’s Minister of Justice and Minister Responsible for Constitutional Negotiations when the Charter was enacted in 1982, boasts in his memoirs that “we had charter of rights and freedoms that […] is one of the best in the world and which is now changing our legal system for the better.”[7] This positive mainstream discourse contrasts greatly with Humphrey’s focus on the Charter’s inadequacies.

In conclusion, John Humphrey’s 1982 speech to the Canadian Bar Association and the International Commission of Jurists is historically significant due to its content, which is highly critical of the new Charter. Humphrey argues that the Charter does not meet Canada’s international obligations under international law by virtue of its permission of the violation of a wide array of rights and its omission of certain fundamental rights which Canada is bound to protect under international law. Humphrey’s sharp critique greatly differs from the positive and generally celebratory understanding of the Charter today.

 


[1] “History Spanning Three Centuries.” The Canadian Bar Association. Last modified 2016. http://www.cba.org/Who-We-Are/About-us/History

[2] Frederick Vaughan, “Judicial Politics in Canada: Patterns and Trends,” in Judicial Power and Canadian Democracy, ed. Peter H. Russell and Paul Howe (Montreal: McGill-Queens University Press, 2001), 13.

[3] “About.” International Commission of Jurists. Last modified 2016. http://www.icj.org/about/

[4] In Humphrey’s speech, the Charter’s sections are referred to as ‘articles’

[5] Isabel Altamirano-Jiménez, “Indigeneity and Self-Governance,” in Critical Concepts: An Introduction to Politics, ed. Janine Brodie et al. (Toronto: Pearson Canada, 2014), 232.

[6] John Ralston Saul, The Comeback (Toronto: Viking Publishing, 2014), 199.

[7] Jean Chrétien, Straight from the Heart (Toronto: Key Porter Books, 1985), 192.

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