The Canadian Charter of Human Rights and International Law, 1981

By Andrew Matheson

On December 8th, 1981, John Humphrey gave a speech at the University of Western Ontario in London, Ontario about international human rights and their connection with Canadian law. At the time of this speech, Prime Minister Pierre Trudeau and his Liberal government were in the process of repatriating the constitution and drafting what would become the Canadian Charter of Rights and Freedoms. This speech offers an important insight into the challenges of writing and implementing international law, namely the difficulties in reconciling national sovereignty and international law.

One of the main issues with international law is the enforcement of the codified laws set out in treaties and declarations. Generally, any law needs to be enforced through executive (police) and judicial (court system) bodies. With international law, however, this would require international executive and judicial bodies. Today there are mechanisms in place to support international law, primarily the International Court of Justice, established in June 1945 in the United Nations Charter and elected in February 1946.[i] These mechanisms, however, directly challenge the principle of national sovereignty and the ability for nations to create and enforce their own laws.

As mentioned previously, Humphrey’s speech was given at the time when the Liberal government of Pierre Trudeau was in the process of drafting the Canadian Charter of Rights and Freedoms within a revised constitution. Humphrey argues that the proposed Charter did not “reflect certain obligations which bind Canada under international law.” His primary concern seems to be in relation to the idea that the Charter only guarantees – as outlined in article one – the rights and freedoms of Canadians within “reasonable limits”. He notes that according to the United Nations covenant on Civil and Political Rights (as well as other international laws), there are certain rights and freedoms that must be protected at all times. These include the right to life, recognition as a person before the law, and freedom of thought, conscience and religion. At the time, the proposed Charter did not mention any protective measures against transgressions of these rights in times of emergencies. It left the ambiguous “reasonable limits” clause up to the court’s discretion.

Furthermore, the controversial section 33 of the Charter suggests that federal or provincial governments can enact any temporary law that can override the fundamental freedoms set out in sections 2, and 7-15 of the Charter without any court challenge.These include the freedom of conscience, religion, thought, peaceful assembly, and association (section 2a-d), as well as the legal rights to “life, liberty, and security of the person” (section 7a).[vi] Humphrey rightly expresses concern about this clause, noting that this “definitive” clause “will not be of as much assistance in helping Canada respect our international obligations…” In times of emergency, the federal or provincial governments could enact measures such as the War Measures Act, which would allow the government to override rights commonly understood within these international treaties as inalienable.

Finally, Humphrey also notes the absence of any provision mentioning discrimination based on language within the Charter. Given that Canada is a bilingual country, it is odd to leave out any protection of such an important cultural aspect as language. As he argues, this is directly contrary to the United Nations Charter’s first article, which states that the United Nations (of which Canada is a member) “is to promote and encourage respect for ‘human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” As a member of the United Nations, Canada has officially committed herself to upholding this charter, however the Canadian Charter of Rights and Freedoms then, as it does today, does not fully support and protect these rights.

Throughout this speech Humphrey demonstrates the divide between international law and national sovereignty. As one of the primary authors of the Universal Declaration of Human Rights, he argues that, while there was no intention in 1948 that he declaration would be legally binding, 33 years later it has “become, by general consensus, part of the customary law of nations; and it is therefore now binding on all countries…” Humphrey even notes the reluctance of many governments to ratify two covenants on the implementation of the declaration as they would be accepting limitations on their sovereignty, with Canada officially ratifying the covenants on May 19, 1976. Even today, the Charter  contains the same wording that Humphrey had issues against. So, even as a member of the UN and a relatively progressive Western state, Canadian federal law still contravenes supposedly binding international treaties.

 


[i] “The Court,” International Court of Justice, accessed February 24, 2016, http://www.icj-cij.org/court/index.php?p1=1&p2=1.

[vi] “Constitution Act, 1982.” Justice Laws Website. Last modified February 12, 2016. Accessed February 24, 2016. http://laws-lois.justice.gc.ca/eng/const/page-15.html.

 

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