Monday, September 12, 2011


Rights are mainly a matter of declarations. They are, in short, the product of a speech act. Undeclared rights are not rights at all. Hence the history of human rights is also a history of their repeated enunciation and articulation, from the Magna Carta on. But a declaration also implies an audience, and a process of interpretation. Hence, alongside this history of speech acts is a parallel (parasitical?) history of interpretation and commentary. Often the modus operandi of that commentary is the laborious process by which an event is reconstituted and reimagined: What exactly did the framers mean?

And if a declaration is an event, an irruption onto the scene of political discourse (dated: 1789, 1948...), then usually interpretation is the province of an institution (a Supreme Court or similar), whose judgments may or may not come to be seen as events and so new declarations, that have in turn to be interpreted in subsequent institutional deliberations. Such is the temporality of rights discourse: the violent irruption of the event is followed by the (quite literally) stately progress of deliberation and interpretation.

But some events are less eventful than others. The "Canadian Charter of Rights and Freedoms" is, frankly, a bit of a damp squib. It comes late to the scene of rights declarations (which were piling up thick and fast by the middle of the twentieth century). Belatedness is not itself a curse: the more recent a declaration, the more likely it is to declare a new right, and thus to up the ante of the game of eventful articulation. The Canadian Charter, however, manages to be both almost entirely derivative and singularly Canadian at the same time.

The derivativeness is in the first instance linguistic. And I don't merely mean the phrases (e.g. "the right not to be subjected to any cruel and unusual treatment or punishment") clearly lifted from other, similar documents. More to the point, and despite being described as a document that articulates the values around which the Canadian people can unify, the Charter's language is distinctly uninspiring.

It doesn't help that the document's very first clause is the famous "Limitations" clause that states that the rights that follow are "subject [. . .] to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." This may seem like an eminently sensible and pragmatic reminder that rights are mutually limiting: the right to free speech, for instance, is limited by the right to non-discrimination; hence bans on hate speech. But it sure takes the wind out of the Charter's rhetorical sails.

Imagine the crowds that surged on Parliament Hill, urged on by the slogan "Fight for your Rights! Subject only to Such Reasonable Limits Prescribed by Law as Can Be Demonstrably Justified..." Actually, you can almost imagine an Ottawa crowd moved by such a slogan. Hence the distinctively Canadian tone of the Charter: so very sensible and self-limiting. Quite unlike the US Bill of Rights, for instance. And the Canadians not only begin with a "Limitations" clause; they also end with a "Notwithstanding" clause, which basically means that the Parliament or a provincial legislature can suspend almost any of the Charter's provisions for (a renewable) five years.

In short, if every rights regime comes into being and operates between the twin pressures and temporalities of an insurgent event on the one hand, and that event's institutional interpretation and assimilation on the other, it's very clear to which of the two Canada's Charter leans: it's a tool of state management much more than it is the result of popular struggle. Its time is not that of revolution (still, by contrast, hard-wired into the US Bill of Rights or the French Declaration of the Rights of the Citizen) but of pacification.

And so no wonder that Harry Arthurs and Brent Arnold can conclude that the Charter is essentially useless:
Progress towards the vision of Canada inscribed in the Charter has generally been modest, halting, non-existent, and, in some cases, negative. What we claim is that the Charter does not much matter in the precise sense that it has not – for whatever reason – significantly altered the reality of life in Canada.

[. . .]

Canada’s political culture today is less vibrant, less democratic, than it was a generation ago.

[. . .]

The plight of Aboriginal peoples has not been much ameliorated, if at all. The project of multiculturalism, which is mentioned but not given prominence in the Charter, has seemingly gone off the boil. Immigrants – despite new guarantees of their legal and equality rights – seem to be having a tougher time integrating into society and the economy. ("Does the Charter Matter?" [Review of Constitutional Studies 11.1 (2005)]: 38, 111-112)
And why exactly has it had so little impact, or has what impact it has had been mostly negative? Essentially because it substitutes fictive abstract equality for real material differences. This, after all, is the fundamental move of all rights discourse, from the founding conceit of moving from natural to civil rights. Again, as Arthurs and Arnold put it:
If one were to establish a gradient that descends from the most affluent to the least affluent members of society, one would find at each point on that gradient not only lower living standards, but lower levels of educational attainment, health, personal safety and security, civic participation, political influence, and respect from police and other state officials. Moreover, as one descended the gradient, one would almost certainly encounter members of Charter-protected groups in ever-increasing numbers. [. . .] The best prospects for greater progress towards the equality values of the Charter would therefore be to redistribute wealth.

[. . .]

Of course, the Charter was not designed to transform Canada’s political economy. On the contrary, when it was adopted, its architects took considerable care neither to protect property nor to redistribute wealth. (113-114)
But is this not what all rights declarations do? It's not merely that the Canadian Charter happens to be one of the least interesting and least effective instances of such rights discourse. It also demonstrates to us something shared by all such discourse. For it always ultimately is a matter of replacing popular struggle with bureaucratic institutions.


Stephen Downes said...

I think it's worth noting that the Charter of Rights was the result, not of some popular struggle, but of an ongoing attempt to repatriate Canada's constitution.

It is designed, therefore, not to enshrine some new set of rights and freedoms, but rather to entrench those that had already become a part of the fabric of Canadian life, in the context in which they were currently practised.

Though there was in fact a flurry of judicial activism after the passing of the Charter, activism was for the most part unnecessary. The question "what did the framers mean?" was mostly replaced by the question "what is current Canadian practice?" It is a charter of rights exercised not by some force of will, but through the consensus of a community.

Yes, the Canadian democracy continues to have flaws. But the courts have recognized that First Nations do have rights, and these have steadily progressed through the courts. And multiculturalism, though it could be more flavourful, is a fact in Canada, and need not be enforced by some act of revolution.

Not all rights documents need reflect the revolutionary fervour of a nation in turmoil. They can, by contrast, express the not-so-uniquely Canadian desire for peace, order and good government.

posthegemony said...

Thanks for this, Stephen.  I guess what you're doing is putting a positive spin on what I was saying...

The question is then whether, if a Bill of Rights is not the result of popular struggle (or even when it is), is not the declaration superfluous?

I mean, if these rights and freedoms are already "a part of the fabric of life," then to what extent are they "entrench[ed]" by means of the Charter?

And where they are not fully accepted (I'm thinking of Quebec, of course), then the Charter is simply ignored.

So if the Charter is not useless, it's unnecessary.  Except in so far as it confirms Canadians self-image as residents of a country characterized by "<span>peace, order and good government."</span>

...until, that is, the next time a government invokes the War Measures act, prorogues parliament, invokes either the Limitations or the Notwithstanding clause, or otherwise finds a way to sidestep the Charter.

Fiona said...

The Nothwithsanding clause was added to get approval from all provinces, particularly Quebec, on the Charter. Its purpose is to prevent too much a shift in political power toward the appointed (justices) and away from the elected. Wouldn't you say that this is a good thing for democracy? And of course, in practice, its only *significant* employment to-date has been around French-only signage in Quebec (there's an interesting side story here about the missing apostrophe in Tim Hortons).

You mention that Canada's Charter came "late to the game." Note that the Canadian Bill of Rights (1960) preceded the Charter. 1960 is still late to the game perhaps.... But not as late as 1982.

Also, have you seen this re: implied rights in Canada?
Quite interesting!

posthegemony said...

Yes, of course they added loopholes so that the Charter could and would be accepted.  But what's the point of rights that are not inalienable and self-evident?  Indeed, are they still rights at all?  What makes them any different from any other piece of legislation?

Which may indeed be democratic.  After all, the whole point of ordinary legistlation is that it can be repealed at any moment by our elected representatives.  Bills of Rights are generally much more resistant to democratic change--some much more so than others.

So if you're saying that Bills and Charters of Rights are inherently undemocratic, I'd be hard put to disagree with you.  Indeed, much liberal political theory concerns the trade-off between democracy and rights.  As always, this is an issue that the Canadians fudge.

John Egan said...

The material implications of the Charter have been substantive. Specifically 15.2:

<span> (2)</span> Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

This section-and the mechanism it presents for minority groups *not* named in the original Charter to pursue justice--has transformed my life as a gay man.  Since discrimination on the basis of sexual orientation was "read into" the Charter I have been able to:

Seek redress for unfair immigration policy (partner sponsorship)--and won.
Add a partner to my employee benefits.
To name as my next of kin for all legal purposes to be my male partner.
Marry my partner

Any knowledgeable queer Canadian knows the main driver that's pushed our human rights agenda forward has been the Charter. So it's been an effective--transformative--document for me.