Ottawa, April 17, 1982. With the stroke of a pen, Queen Elizabeth II proclaims the entry into force of the “new Constitution” of Canada, in which a charter of rights and freedoms sits majestically. A marching band breaks out. A revolution not only legal, but also cultural, ensues, says the Chief Justice of Canada, Richard Wagner, 40 years later.
“Legally, there was a revolution; culturally too,” he said in the Justices’ Reading Room of the Supreme Court building in Ottawa. Anyone who enters is first caught by a large colorful quilt, hanging on the gray stone wall in the hallway, next to the double door. The nine justices of the highest court in the land — who are described as “defenders of the Charter of Rights and Freedoms” — are represented as an owl. “The owl: wise, attentive, insightful: natural choice for a quilt representing the Supreme Court; the colorful barn owl embodies the dynamism of this courtyard”, can we read on the metal cartel signed David Baxter.
Enshrined in the Constitution — the law above federal and provincial laws — the Canadian Charter of Rights and Freedoms carries “enormous weight,” says Richard Wagner. ” [En 1982,] the Canadian Parliament and elected officials gave judges, for the first time, the duty and responsibility to interpret the Charter of Rights and Freedoms. And that is a revolution compared to what there was before, before 1982, when the courts were called upon to simply rule [sur la légalité d’une loi] according to the jurisdictions [définies par] the Constitution, Articles 91 and 92 [qui déterminent] what is provincial, what is federal,” he recalls in an interview with The duty. “Any application of this charter in real situations has an incredible impact, a fundamental impact, on the evolution of society,” he adds.
From 1982 to the 2000s: the “foundation”
“We now have a charter that defines the type of country we want to live in and that guarantees the fundamental rights and freedoms that each of us must enjoy as Canadian citizens,” Prime Minister Pierre Elliott Trudeau declared, delighted, on 17 April 1982, after going up to Parliament Hill in a three-piece suit with a pink buttonhole. Less than six months have passed since the “night of the long knives”, at the end of which he agreed, behind Quebec’s back, with seven of the eight provinces until then still reluctant to his plan to repatriate the Constitution of 1867, then add an amending formula and a charter of rights and freedoms.
The “new Constitution” strengthens the rights of peoples, adds Queen Elizabeth II, before reiterating her “boundless confidence in the future of this formidable country”. A light rain is falling. People gathered in downtown Ottawa cheer or wave small flags.
Once the festivities were over, the Supreme Court agreed to interpret the Charter of Rights and Freedoms – “in a generous, liberal and broad manner”, relates Richard Wagner, while recalling the theory of constitutional interpretation of the “living tree which affirms that the Constitution of Canada is organic and must be interpreted in such a way as to adapt it to the evolution of society. In doing so, the judges of the highest court in the land have, by means of the Charter, accelerated social advances that governments and parliaments were not necessarily ready to implement or support: the right of women to use abortion, the rights of people of the same sex to marry civilly, the rights of people with serious and irremediable health problems to resort to medical aid in dying…
“The 1990s were big years, when we tested several provisions of the Charter,” underlines Richard Wagner in front of a Canadian flag topped with a golden maple leaf.
The tree is still blooming
The constitutional tree planted by Queen Elizabeth II will continue to grow and bear fruit.
To the same question, the Supreme Court can give, in “different worlds”, different answers, even if it means flouting the rule of precedent. “Obviously, we must respect the precedents, with some exceptions,” he specifies, pointing to the Rodriguez (1993) judgments — no to medical assistance in dying — and Carter (2015) — yes to medical assistance in to die.
“We do not freeze rights and freedoms as they were in 1982, we interpret them according to the historical, political and social evolution of society, so that the needs of citizens, the well-being of citizens, are always met. you,” says Chief Justice Richard Wagner. “1867 and 1982 are two different worlds. 1982 and 2022 are two different worlds. The evolution of technology, the evolution of science, the evolution of mores have meant that we can no longer interpret the Charter of Rights and Freedoms as it was interpreted in 1993, for example, on certain elements . So that’s the living tree theory, ”explains the man, who was appointed a justice of the Supreme Court of Canada in 2012.
Is the Supreme Court of Canada a nest of ” woke », or « awakened », who see injustices everywhere? “Me, I analyze a file according to the evidence and the arguments submitted to me. So, I move away from qualifiers. I leave to others [la possibilité] please call me as they want,” said Justice Wagner with a smile, for whom the Charter of Rights and Freedoms is at the heart of Canadian identity, in addition to being a symbol of “unity.
“One valve” with limited range
On April 17, 1982, Canada went from a “parliamentary democracy” to a “constitutional democracy”, or even from “a Canadian system of government from parliamentary supremacy to constitutional supremacy”, affirmed the former judge in leader of Canada Beverley McLachlin.
But can we really speak of “constitutional supremacy” when parliaments can have the last word on the Supreme Court by brandishing the notwithstanding provision, provided for in section 33 of the Canadian Charter of Rights and Freedoms, to keep alive a law contravening section 2 or sections 7 to 15?
“In our political and legal system, Parliament, the Legislative Assembly in Quebec, remains sovereign,” replies Richard Wagner after recalling the origin of the notwithstanding provision: a “political compromise” which made it possible to convince the provinces, but not Quebec, to support the patriation of the Canadian Constitution. “I interpret the thinking of these people – it was a valve which made it possible to ensure forever the sovereignty of Parliament or the legislature”, indicates the magistrate, while emphasizing that article 33 is “all the same an article of specific scope”.
We do not freeze the rights and freedoms as they were in 1982, we interpret them according to the historical, political and social evolution of society, so that the needs of citizens, the well-being of citizens, are always met. you.
“And perhaps, in the coming years, in the coming months, we will be called upon to determine, decide or comment on the circumstances in which this article can be raised,” he adds. On its preventive use, for example? ask him The duty. “Perhaps”, simply replies Judge Wagner, specifying afterwards: “We will see for the future if indeed there are other debates to be had on the interpretation of [l’article] 33. But I would like that, to be part of the debate,” he adds, hiding behind his duty of reserve.
Outraged cries rang out across the country after the Quebec government clarified that the bill on state secularism (21) and the bill on the official and common language, French (96), take effect independently of the Canadian Charter, even before they are examined by the courts.
Taking precedence not only over federal laws, but also over provincial laws, the Canadian Charter has the effect of restricting the National Assembly in the exercise of its legislative powers in matters related to its own identity, argues the Government of Quebec . The “affront [du rapatriement unilatéral de la Constitution] continues to have detrimental effects on Quebec’s autonomy and its ability to maintain and develop its collective personality”, argued with one voice the CAQ government and the Solidarity and PQ opposition parties in the National Assembly this week.
Should governments have the “power to override court decisions by passing a law even if the courts have declared that law unconstitutional,” as they can through the notwithstanding clause? asked Environics Institute. Yes, say barely 34% of Quebec Francophones. “The percentage could vary if we included a particular law, for example Bill 21,” notes the director of the Center of Excellence on the Canadian Federation, Charles Breton.
Interestingly, he notes, 48% of French-speaking Quebecers aged 55 and over welcome the possibility given to the National Assembly to ignore the Canadian Charter, compared to only 18% of those aged 18 to 34 years old. “Young Quebecers aged 18-34 are very similar to young Canadians aged 18-34 [comparativement à il y a 40 ans]. We can clearly say that, on certain questions, the young people of today in Quebec are different from the young people of the time of the constitutional bickerings, ”he argues.