“The Canadian Charter of Human Rights and International Law”

By Laurie Mercier

On the eve of repatriation in December 1981, John Humphrey delivered a speech entitled “The Canadian Charter of Human Rights and International Law” at the University of Western Ontario. Humphrey welcomed legislative action to protect fundamental human rights with a constitutionally entrenched charter, an initiative he had advocated in favor of for years. To Humphrey, the growth of legislative and executive powers conferred upon government the obligation to prescribe the rights and freedoms of individuals vis-à-vis the state. Moreover, he saw that the Canadian Charter of Rights and Freedom’s binding nature on all governments would create legal uniformity in a diverse federation, providing equal protection under the law to all its subjects.

But the Charter, for all of its alleged brightness, was not without difficulties for Humphrey; its content did not reflect the international human rights standards to which Canada had previously committed.[1]  To Humphrey, the Charter’s omission of any international rights standards created as many questions as it answers. For instance, did the absence of international commitment suggest that, if adopted, governments could evade international rights obligations that were not explicitly stated under the Charter? Besides this more general preposition, Humphrey was concerned that the very text of the Charter, specifically, sections 1, 25 and 33, would recognize right infringement as permissible executive and legislative choices.

The text of section 1 exposes that the Charter is subject “to such reasonable limits prescribed by law” that are not contained in its text, thus pointing to the risk that unwarranted restrictions may be imposed on right bearers. Humphrey’s analysis of this section reveals that its limitation clause violates the United Nations covenant on Civil and Political Rights by which Canada is bound to under international law. Humphrey contended that extraordinary circumstances cannot justify rights infringements because certain rights are so fundamental that they must be respected “even in time of emergency.” The legal ambiguity which plagues the limitations clause was both problematic and unjustified for Humphrey, leading him to question why the Charter did not employ the clear language of the Covenant. Without clear constitutional guidelines for what justifies a limitation, the law’s malleability made him reluctant to vesting his “trust in the reasonableness of any Court.”[2]

Moreover, Humphrey discussed the extraordinary power that section 33 of the Charter delegates to provincial governments. The “notwithstanding clause,” as is has come to be known, grants provincial legislatures the power to override Charter rights guaranteed by sections 2, and 7 to 15, in any act of legislation for a period of 5 years. As Humphrey pointed out, this provision exhibits the same fundamental flaw as does section 1, for they both allow the implausible proposition that fundamental human rights are alienable. With regards to international commitments, Humphrey concluded that the two provisions, as so worded, contradict the standards governing international human rights law.

While the Charter is alleged to protect English and French, Humphrey questions the mysterious omission of language as a “prohibited ground of discrimination.” The distinction between the protection of language and the prohibition to discriminate on its basis is noteworthy. By contrast, the United Nations Charter makes this distinction by purporting the “universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex language or religion.”[3] It is unclear whether the absence of such clarity was specifically intended by the framers of the Charter but either way, the omission is not forgiven by international law standards.

These observations point to a two-fold argument. Firstly, though the Charter does not violate international law per se, it consistently undermines the rationales, assumptions and values that govern the international system. Ultimately, it expresses the fact that the Charter denies international law a permanent place in Canadian jurisdiction. The framer’s reluctance to entrench international standards and adopt broadly defined provisions was not without a reasoned basis. To prescribe the same standards that exist at international law to the Charter would have legally bound Canadian governments to much higher and judicially-enforceable standards of scrutiny. Under the pretext of unforeseeable circumstances, the framers argued that the Charter’s broad language would permit the judiciary to approach its text in a fashion that could accommodate its collective fancy. Nonetheless, the adoption of the Charter in 1982 was done without the consent of indigenous nations and the province of Quebec, revealing the inconsistency between the intentions and the values its framers professed. Humphrey’s message was clear; the standards impartially prescribed at international law are the only ones which can ultimately safeguard us against politically-driven agendas.

Though the Supreme Court has explicitly affirmed Canada’s obligation to comply with international law, these standards, though binding on paper, have been enforced selectively.[4] It is for this reason that Humphrey, with all his legal wisdom, urged us to discover and defend international law to protect us from the fallacy that our fundamental rights can be taken from us. Humphrey’s message in 1981 holds as much significance today as it did then, for its broader message- that we must never stop cautiously protecting democracy- is timeless.

[1] McGill University Archives. MG 4127 C.18 F.369. “The Canadian Charter of Human Rights and International Law.” (Lecture at a meeting sponsored by the Faculty of Education of University of Western Ontario). December 8, 1981, p. 8.

[2] Ibid, p. 7.

[3] Ibid.

[4] R. v. Hape [2007] 2 S.C.R. 292, para. 53.

Comments are closed.

Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.