Maxwell Yalden was Canada’s language commissioner from 1977 to 1984. In that position, he worked to reinforce language equality and the Official Languages Act, which celebrates its 40th anniversary this year.
He was also chief commissioner of the Canadian Human Rights Commission from 1987 to 1996, as well as serving for eight years as a member of the United Nations Human Rights Commission.
But, with a slam at Mr. Trudeau, who ‘did not protect the section guaranteeing freedom of expression from the notwithstanding clause,’ he went on to conclude that he ‘was only following the law of the land.’ Be that as it may, the reaction in Manitoba was immediate: the following day, Premier Filmon called the Meech agreement into question, thereby leaving it open in due course to the procedural gambit that brought about its failure to pass the Manitoba legislature, and its ignominious demise, with which we are all too familiar.
I think it will be difficult to invoke the notwithstanding clause again on a rights-related issue. Especially in light of the Alberta government’s experience in the early months of 1998, when it twice considered using it (first in regard to limiting damages to be paid to victims of sterilization and then in reaction to the court’s decision regarding homosexuality in the Vriend case), only to decide against it in the end. A prudent political leader will think twice before risking allegations of indifference towards minorities. Perhaps the language issue in Quebec is unique in this respect, but I doubt that a federalist leader would move in this direction, and the separatists have bigger fish to fry.
A further significant point in all of this, however, is perhaps a more general one. The courts may diverge from time to time from the current of public opinion, but on the whole they have been cautious. Thus, for example, it was possible for the U.S. Supreme Court to defend the ‘separate but equal’ doctrine for many years in respect of American blacks. In the same time period, our own courts went along with restrictive covenants or other actions against blacks and Jews. During the McCarthy years, so called Communists were persecuted in the name of ‘national security’ in the United States with little censure from the courts, and while recent events have brought judicial criticism, the courts have yet to put a stop to them. Despite the exaggerations of the press, judges are not oblivious to what is going on around them, and they are not revolutionaries.
Often enough regarding the same decision, especially from the Supreme Court of Canada, we have academic and media commentators firing from the sidelines in all directions at once. The court has gone too far (it is ‘arrogant’ as the Globe and Mail put it about one judgment). Or it is pusillanimous and has not gone far enough. Or it has got it more or less right, but the question is one that should really have been left to Parliament. The fact is that we have a realistic group of individuals on the Supreme Court who have on the whole produced sensible decisions on difficult and complex problems that are not of their own making but have been handed to them by the federal and provincial legislatures.
As a result, even with all the constraints surrounding their activities, the courts have unquestionably played a major role in advancing the human rights dossier. Of course, they have not been working in a vacuum — federal and provincial legislation and eventually the Charter were essential construction blocks. But without the courts, the master builder would have been missing.
At the same time, rather curiously, the history of court action has at times been a patchwork affair, markedly conservative for many years, and coming round only rather slowly to a more rights-oriented approach. One might compare, for example, the Supreme Court’s antediluvian decision in the 1979 Bliss case, where it was held that denying unemployment insurance (UI) to a pregnant woman was not discrimination because ‘any inequality between the sexes in this area is not created by legislation but by nature’ and any ‘differential treatment was of pregnant persons, not women.’ A decade later, this reasoning was overturned in a decision written by Chief Justice Dickson, on the grounds that it was the UI legislation, not ‘nature,’ that was discriminatory, with explicit recognition of ‘pregnancy discrimination as an obvious case of sex discrimination.’
Other ‘conservative’ or at least not rights-oriented decisions, as I see them, were handed down, for example, in the Bhinder case in 1985, where the Supreme Court held that it was acceptable to require that hard hats be worn on CNR work sites, rejecting allegations of discrimination by a Sikh whose religion required him to wear a turban. This judgment was effectively overturned five years later in a landmark decision setting out the requirements for ‘reasonable accommodation’ of minorities.
In yet another decision, in a 1990 age discrimination case, the court held that mandatory retirement was not unconstitutional, interestingly enough with a dissent by Madam Justice Wilson (with whom I entirely agree) that such treatment was ‘an affront to the individual.’ In any event, in various instances, including the Government of Ontario, for example, the issue has been bypassed, as the authorities have moved on their own to remove mandatory retirement from the statute books.
Or again, in a language case that I have mentioned above, where a decision was handed down by the Supreme Court, to the effect that, although proceedings involving a French-language minority individual had to be bilingual, the judge did not necessarily have to understand the proceedings. Nine years later, this judgment was also overturned.
And finally, a more recent case concerning an allegation of religious discrimination in education in Ontario, involving a father who had had to pay to have his children educated in the Jewish faith, was ultimately taken to the UN Human Rights Committee, and is discussed below in that context. Suffice it to observe here that the Supreme Court of Canada had earlier ruled that the existing arrangements were not unconstitutional. In so doing, it chose to give greater weight to a 125-year-old constitutional text on guarantees to Roman Catholics in that province than to modern-day anti-discrimination commitments, both in the Charter of Rights and in international instruments to which Canada is a party.
On the other side of the ledger, there are any number of instances in which the Canadian courts have advanced the cause of human rights, beginning with what Irwin Cotler has called the ‘historic trilogy’ of cases dealing with free speech and whether ‘incitement to religious hatred is protected speech …’ In that context, the author cites then Chief Justice Dickson’s important observation to the effect that restrictions on hate speech do not ‘compromise the values of free speech.’
Or consider the Supreme Court’s decision in Singh, where it confirmed that the Charter provides that any individual in Canada, not just citizens or legal residents, enjoys the same rights to a fair hearing. Much to the chagrin, it might be added, of those who believe in playing ‘tough’ with refugee claimants and asylum seekers, who ‘use’ the courts to drag out their stay in Canada interminably.
Or turning to discrimination, the O’Malley case, regarding Seventh day Adventists and the right to work on Sunday; the Andrews case rejecting the requirement of citizenship to be a member of the bar; the Egan case with respect to homosexual rights; the Eldridge case where, contrary to the British Columbia Court of Appeal, the Supreme Court held that the fact that the state was not the cause of a disability did not absolve it from dealing with the effects and providing suitable remedies. And finally, other cases dealing with sex discrimination and sexual harassment.
On the whole, this is an impressive list in anyone’s book; but it is not the whole story.
Excerpt courtesy of University of Toronto Press.
