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4 Const. F. 38 (1992-1993)
The Canada Clause That Was: How Courts Use Interpretative Clauses

handle is hein.journals/consfo4 and id is 42 raw text is: CONSTITUTIONAL FORUM THE CANADA CLAUSE THAT WAS: HOW COURTS USE INTERPRETATIVE CLAUSES Shirish P. Chotalia INTRODUCTION The death of the Charlottetown Accord was due to many factors, one of which was the objections of some members of the public to the Canada Clause. Some asserted that it created a hierarchy of rights; others argued that it subverted gender equality provisions; still others felt that it subjugated individual rights to collective rights. It is my contention that the Canada Clause, while not ideal,1 failed largely because of the public's lack of knowledge of how courts have used interpretative clauses in the past, and how the Canada clause might have been used by courts in the future. BACKGROUND Coming to terms with our history, we believe, means coming to terms with the distinct societies which make up Canada's society and culture. Not to acknowledge that Quebec is distinct from the rest of Canada seems to be an attempt to rewrite Canadian history; not to recog- nize Canada's unique commitment to multiculturalism seems to be an attempt to ignore our history; not to acknowledge Canada's debt to its Aboriginal people, we believe, is to deny our history.2 The Canada Clause was to guide the courts in their future interpretation of the entire Constitution, including the Canadian Charter of Rights and Freedoms. Both the stated purpose and the clear wording of the clause confirmed that it was to be interpretative and not substantive: 2. (1)The Constitution of Canada, including the Cana- dian Charter of Rights and Freedoms, shall be inter- preted in a manner consistent with the following fundamental characteristics: (a) Canada is a democracy committed to a parliamentary and federal system of government and to the rule of law; (b) the Aboriginal peoples of Canada, being the first peoples to govem this land, have the right to promote their languages, cultures and traditions and to ensure the integrity of their societies, and their governments con- stitute one of three orders of government in Canada; (c) Quebec constitutes within Canada a distinct society, which includes a French-speaking majority, a unique culture and a civil law tradition; (d) Canadians and their governments are committed to the vitality and development of official language minor- ity communities throughout Canada; (e) Canadians are committed to racial and ethnic equal- ity in a society that includes citizens from many lands who have contributed, and continue to contribute, to the building of a strong Canada that reflects its cultural and racial diversity; (f) Canadians are committed to a respect for individual and collective human rights and freedoms of all people; (g) Canadians are committed to the equality of female and male persons; and (h) Canadians confirm the principle of the equality of the provinces at the same time as recognizing their diverse characteristics. The Canada Clause provided constitutional recognition of the Canadian reality. The interpretative value of the Canada Clause would have been important in providing a larger vision of the country to appointed judges in their traditional analysis of the Charter, not unlike interpretative clauses already existing in the Charter. Indeed, many of the clause's provisions are well accepted legal tenets of Canadian society such as Canada being a democracy and being committed to the rule of law. The Supreme Court has recog- nized the fact that the rule of law is a cornerstone of our democratic form of government and that it guarantees the rights of citizens to protection against arbitrary and unconstitutional government action.3 Others are already explicitly provided for in other portions of the Constitution. For example, the affirmation of commitments to gender equality and to racial and ethnic equality are encompassed within s. 15 of the Charter. Some appeared to slightly and subtly expand our existing vision of Canada. For example, the notion that Canadians and their governments are committed to the vitality and development of official language minority communities throughout Canada is en- trenched to some extent in the Official Languages of Canada and Minority Language Educational Rights provisions of the Char- ter. For example, s. 16 (3) provides: Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English or French. Here, some argue, there is no commitment to advance the use of English or French by gov-

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