The challenge of our Charter identity

By Beverley Baines March 2012

Our Charter identity is hard to pin down. It’s what makes reconciling rights so hard to do.

The challenge of our Charter identity Photo of Beverley Baines by Mike Pinder.

At a recent Tunisian conference on good governance, the 90 or so participants — almost all of whom were Tunisian women lawyers and activists — focused on the constitutional implications of rebuilding their society in a new era marked by the Arab Spring.
They debated three main issues: protecting gender equality, improving gender parity, and describing the Tunisian identity. Despite our different backgrounds, I found myself comparing their constitutional rights-based priorities with those embedded in the Canadian Charter of Rights and Freedoms.
There are good and bad aspects to Canada’s record on gender equality. The good is that we entrenched two gender equality provisions in the Charter, sections 15 and 28, while a third gender equality provision is found in the 1982 Constitution Act at s. 35(4). The bad is that women have never won a gender equality case at the Supreme Court even though the Court in 1989 adopted the concept of substantive rather than formal equality in its first s. 15 decision, Andrews v. Law Society of British Columbia.
As for gender parity, neither the Constitution nor the Charter make any reference to it. In contrast, Tunisia adopted parity — the requirement that parties present equal numbers of women and men as their candidates — for the election of the National Constituent Assembly. Although only 49 women (or 23 per cent) were elected, the conference participants argued for enhancing gender parity. They advocated assigning women and men an equal number of seats in any new legislature and in any new constitutional court.
The most contentious issue for the conference participants turned on how to depict the Tunisian identity. Article 1 of Tunisia’s 1959 Constitution had described the country as a free, independent and sovereign state, its religion as Islam, its language as Arabic and its government as a republic. The women were no strangers to identifying what it means to be Tunisian. Even so, their debate focused on whether to continue to refer to Islam as Tunisia’s religion; whether to add a new reference to Tunisia as a civil society; and whether to describe the Republic as “democratic”.
An ambiguous identity

Compared to the easy-to-find, straightforward de­scrip­tion of the Tunisian identity, the Charter’s portrait of our identity is far-flung, spread over at least seven provisions, some of which are ambiguous. Beginning with the preamble, we recognize the “supremacy of God”. Does this phrase mean our religion is Christian? Or, that we embrace all major religions, albeit not atheism or agnosticism? It seems we have a religious identity even if we cannot name it.
Section 1 implies that we are a “free and democratic society”, presumably referring to our sovereignty and government. Section 16 declares that we have two official languages, French and English. Section 25 prioritizes aboriginal rights; s. 28, gender equality; and s. 29, some Roman Catholic and Protestant educational rights; while s. 27 adverts to multiculturalism. If the Charter is our guide, is that to mean that our identity is complex, confused, or duplicitous?

"Did the September 11th, 2001, terrorist attacks...change the meaning that Canadian courts attach to Charter-inspired multicultural identity?"

It may be easier to respond to this question by posing a more specific Charter identity question. For instance, what identity do courts ascribe to multicultural rights-seekers? When the Multiculturalism Act was first adopted, multiculturalism was defined in terms of ethnicity, national origin, or race. This definition expanded to encompass religious minorities without losing a jurisprudential commitment to non-discrimination (Bhinder v. Canadian National Railway Co.) and inclusiveness (Singh et al v. Minister of Employment and Immigration).
The new multiculturals — the minorities that seek to affirm religious rights — were mainly successful whether using human rights legislation (Ontario Human Rights Commission v. Simpsons-Sears), or Charter rights (Zylberberg v. Sudbury Board of Education; R. v. Keegstra; Freitag v Penetanguishene). They were oppressed and entitled to assert their Charter rights, mainly freedom of religion. Even when they lost (Adler v. Ontario), the Court did not deny their oppression but rather located it in their faith rather than provincial policy.
Did the September 11th, 2001, terrorist attacks in the United States change the meaning that Canadian courts attach to Charter-inspired multicultural identity? Seemingly not at first given the validation of the Orthodox Jews who set up succahs on balconies of their co-owned properties (Syndicat Northcrest v. Amselem, and of the Sikh student who wore his kirpan at school (Multani v. Commission scolaire Marguerite-Bourgeoys).
However, it is more difficult to explain why the Hutterites who objected to Alberta’s universal photo requirement for driver’s licences were unsuccessful (Alberta v. Hutterian Brethren of Wilson Colony). The Court accepted the province’s claim that continuing to exempt even a small number of Hutterites would compromise the security of their identity theft program as administered through the licensing system. Somehow the Hutterites had morphed from oppressed religious minority to potential security risk.
No one suggested the Hutterites might be perceived as terrorists, just security risks. But what about Muslim women who wear the niqab, leaving only their eyes exposed? American law professor Sahar F. Aziz reviews American jurisprudence about the meaning of the Muslim headscarf in a forthcoming article, arguing that after 9/11 this meaning was transformed in the public mind from a symbol of female subjugation to a symbol of terrorism. In other words, wearing a headscarf marks an American Muslim woman “as a member of the enemy”, making her claim to religious freedom or gender equality rights irrelevant.
What of Canada? Quebec’s Bill 94 denies reasonable accommodation to women who refuse to uncover their faces when asked in the course of offering or receiving public services. The reasons cited by proponents of the legislation are security, identity, and communication needs. But these limitations are vague and all-encompassing. If this bill were to become law and then be subject to a Charter challenge, much would depend on whether a Muslim woman affirming her rights could persuade the court that the Charter offers her a multicultural identity that encompasses her intersectional right to religious freedom and her gender equality rights. In contrast, Quebec has made it clear that it will assume the guise of protector of women’s rights, protecting subjugated Muslim females from becoming terrorists by imposing what it views as acceptable attire.
We will get some idea of where the Supreme Court stands on the niqab issue when the justices issue their decision in R. v. N.S. The case centers on a ruling made by a preliminary inquiry judge that a witness had to remove her niqab to testify against the two men accused of raping her. The woman relied on religious freedom to challenge his ruling.
However neither of the Ontario courts that heard her appeal applied a rigorous s. 1 proportionality test to the contention by the alleged rapists, her uncle and a cousin, that demeanour evidence was essential to their fair trial rights. Instead Justice Doherty at the Ontario Court of Appeal sought to reconcile her rights with their rights at the first or rights-adjudication stage, an approach that was rejected by the Supreme Court in B.(R.) v. Children’s Aid Society, but has been kept alive in the interval by Justice Iacobucci and others who share his view.
Reconciling differences

Reconciling rights may well make good sense for politicians in legislatures and Parliament but it destroys the possibility that the Charter is a document intended to convey the meaning of the Canadian identity. The Charter’s lifeblood — that which distinguishes it from ordinary legislation — is that it recognizes that we have rights that the state may not infringe without justification. Reconciliation evades justification.
Moreover conceptualizing rights as competing (a conventional approach in multicultural cases which are often portrayed as juxtaposing religious freedom and gender equality) not only limits the ability of rights-seekers to make intersectional arguments (usually relevant in multiculturalism cases). Attributing rights to the state enhances the state’s argument to the detriment of that of the original rights-seeker(s). Both of these features prevailed in the BC polygamy reference, leaving women living in polygamy to face criminal charges for what the state claims is already a harmful lifestyle.
What the Charter offered to Canadians in 1982 was a Charter identity, one that allows us to assert rights, establish their infringement by the state and then require the state either to cease and desist infringement or to justify it. But that Charter identity is fragile and it will take a great deal of effort on our part to preserve it.  The current threat comes from the rhetoric of competing rights and the suggestion that courts should reconcile them which is tantamount to giving the state the same rights as are given to us. Nonetheless, a Charter identity is what I wish for the women whom I met in Tunisia.  

Beverley Baines is a Professor at Queen’s University Faculty of Law.
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