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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