On Tuesday, May 16th at the Midland Cultural Centre, retired Simcoe County lawyer Fred Hacker hosted retired Supreme Court Justice Frank Iacobucci for a most interesting conversation about all of his contributions to Canadian public life. It was a memorable evening.
And Justice Iacobucci made it absolutely clear: he takes pride in our system of justice which he says has made Canada a country envied around the world.
July 1st we’re celebrating the sesquicentennial of Canadian Confederation. Of course we never want to forget that Canada’s First Nations had already occupied these lands for millennia: Canada still has much to learn from the “truth and reconciliation” approach underlying aboriginal concepts of justice. And we never want to forget the history and contributions of pre-Confederation settlements, from those tenuous Viking outposts in Newfoundland dating back to 900 AD, the pre-Confederation French and English contacts from the 15th through the 18th centuries, plus all of the diverse contributions of immigrants from every corner of the earth to our country ever since.
But it was the British North America Act of 1867 which committed Canada to the ideals of “peace, order and good government” and a careful distribution of powers. Quite different from the “life, liberty and pursuit of happiness” ethos and the “checks and balances” approach we see south of our border.
And then came our Charter of Rights and Freedoms, entrenched in 1982. Our Charter establishes our fundamental freedoms as citizens: namely freedom of conscience and religion, freedom of thought and belief, freedom of expression and of the press, freedom of peaceful assembly and freedom of association. It also establishes our democratic, mobility, legal, equality and language rights. And perhaps most interesting of all, there is the section 1 provision which establishes that none of these freedoms and rights is absolute: the guarantee of each and every freedom and right is “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Our constitution has been thought of as a “living tree”, always growing and adapting to changing social consensus.
That’s why entrenching our Charter 35 years ago does not depend upon “founders’ intent”: it’s not cast in stone. Our understanding of our Charter freedoms and rights has developed and continues to develop in the case law decided by our courts, including our Supreme Court of Canada.
At home here in Canada, the Charter is a focus for common Canadian values. The interpretation of Charter rights is often controversial. We may think sometimes that politicians shy away from enacting controversial legislation, but our judges can’t avoid controversy. Our judges must comply with the Charter and they have no choice except to decide the cases remitted to them for judgment. Sometimes social consensus is ahead of the law: and sometimes it lags behind, in a kind of rolling evolution. But like Justice Iacobucci, most Canadians do take great pride in our Charter and more generally in our system of justice.
And globally, one of Canada’s proudest “exports” has been our constitutional law. Other countries looking to establish or to amend their own constitutions have studied our Charter. Our Charter cases are read all over the world; some scholars think that these cases are now even more influential than United States Supreme Court jurisprudence. It’s not surprising that our Canadian Supreme Court justices are repeatedly invited to speak at international legal conferences about our Canadian Charter and about our evolving Charter values.
Can our system of justice be improved? Of course it can, and all of us are aware of the need for improvements in many areas of our laws. But our system of justice was designed to permit and in fact to require the incremental improvement of our laws. We have seen incremental improvements happen and we can be optimistic that such improvement will continue.
The Canadian Charter of Rights and Freedoms: just one more thing to celebrate in 2017, on the occasion of Canada’s Sesquicentennial. We’ll think about that when the red and white Canada Celebration tulips, planted outside our office, bloom year after year. Take a look: can you see the Canadian maple leaf flag in each petal?
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