On the Canadian Charter of Rights and Freedoms

By Christian Quenish

This essay is grounded in a speech (date unknown) delivered by Humphrey following the release of the 1982 Canadian Charter of Rights and Freedoms; it speaks to the speech’s historical significance. This essay critiques John Humphrey’s assertion that the 1982 Charter should reflect international obligations.[1] In his speech, he provides a grand narrative of Canadian exceptionalism but bookends his comments by admitting that he is not a prophet.  Analysis of his speech will attest to his lack of clairvoyance. His fears about the Charter as a tool for despotism will be discussed and refuted. However, Humphrey does make a valid point about the nature of Canada’s justice system. Due attention to the Covenant on Political and Civil Rights would have been beneficial to the development of a more robust justice system. In balancing these two points, this essay will conclude that this speech was indicative of dismissive attitudes towards human rights with respect to Indigenous peoples.

Humphrey opens his argument with a reflection on the drafting of the Canadian Charter. He says that lack of consultation  of the United Nations’ covenants and declarations embarrassed the nation’s international image. Humphrey is a true Canadian in the most mythical sense. He is no doubt a man who loved the idyllic aspect of his nation more than the product. Humphrey was right to argue that a Charter detailing the rights and freedoms should reflect universal ideas of civil rights. However, his proposal that the Canadian constitution reflect international obligations and ignore the domestic political culture  is inaccurate. Specifically, he appraises Sections 15 and 33 of the Canadian Charter and refutes their value. Critically, he largely ignores the question of Indigenous rights in the context of international obligations (via treaties) as well as domestically, through a human rights perspective.

Section 33 is the notwithstanding clause. This means that a province’s legislature is not entirely subject to the whim and fancy of the federal government. This section did not apply to First Nations communities.  Humphrey worried that this section would create a hole in human rights affairs in Canada. Yet, given the sections extremely rare (and often controversial) use, Humphrey may have overstated its threat.

Section 15 grants that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on race, nationality or ethnic origin, colour, religion, sex, age or mental or physical disability.” The United Nations Declaration of Human Rights, which forms the basis of Humphrey’s comparison, is understandably broad. It has to apply to nation-states at a universal level. The Canadian Charter need only be couched in Canada’s political history and culture. Humphrey is arguing for Canada’s international obligations reflected in the Charter out of a misplaced sense of propriety.

Crucially, Humphrey’s argument is not completely contained in this grand narrative of Canadian exceptionalism. When one reads what he has to say about the Canadian justice system in reference to the Canadian Charter and the Covenant on Political and Human Rights, a rather poignant point is made. Humphrey discusses how the Canadian Charter would have been positively influenced by a close reading of article 10 of the Covenant of Political and Civil Rights, a UN Covenant to which Canada became a party in 1976. Therein, it calls for the use of reformatory and rehabilitation programs in the penitentiary system. Indigenous people represent such a small portion of the overall Canadian population – about 4.3 percent of the entire Canadian population – yet are overrepresented in Canada’s prison systems. According to Statistics Canada (2013), Indigenous people have made up 23.2% of the federal prison population. In the 2010-11 year, 140 Canadians per every 100,000 adults were incarcerated. In comparison, Aboriginal incarcerations account for 10 times the amount of non-Aboriginal prisoners. There are various complicated reasons for this, and those reasons encompass why Canada should not view itself as highly as Humphrey does.

Humphrey rarely touches directly on issues related to human rights with respect to Indigenous peoples within Canada. This approach has particular poignancy when one considers the international obligations Canada has with the Indigenous groups within Canada, and the history the two communities have with each other. As discussed above, perhaps there is some merit to the international laws that govern Canada’s obligations abroad. Perhaps retroactively justifying a section of Humphrey’s speech gives it a particular sting from the perspective of a contemporary reader. Mostly, Humphrey’s speech tells the reader that Indigenous issues were not high on the radar in terms of Canada’s international obligations.

[1] International obligations: treaties, covenants, and charters of an international character to which a nation-state has agreed to in principle or otherwise ratified in domestic law.


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