charter

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.