Charter of Rights turns Canada into a 'constitutional' trendsetter

Forget, if you will, the prediction that Canada is fast becoming an energy superpower, able to wield influence on the world.

The question legal scholars are asking themselves these days is whether Canada is a "constitutional superpower," primarily on the back of the Charter of Rights and Freedoms.

According to several authorities, the charter, which turns 30 on April 17, has been influencing not just Canadian law but jurisprudence and the drafting of constitutions around the world.

In a forthcoming study that analyzes the content of the world's constitutions, titled, "The Declining Influence of the United States Constitution," its authors observe that, "a stark contrast can be drawn between the declining attraction of the U.S. Constitution as a model for other countries and the increasing attraction of the model provided by America’s neighbour to the north, Canada."

The study is by law professors David Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia and will be published in the June issue of the New York University Law Review. David Law was born in Vancouver and grew up in B.C.

One chapter — "Is Canada a constitutional superpower?" — says that "among common law countries, Canada has served as a constitutional trendsetter."

To reach this conclusion the authors analyzed 729 constitutions drafted between 1946 and 2006 and found that the U.S. Constitution, the oldest national constitution still in force, "no longer serves as the primary source of inspiration for constitution-making."

However, they also found that, "from the enactment of the Bill of Rights in 1960 through the dawn of the 1980s, the overall global constitutional trend was one of increasing similarity to the Canadian constitution."

Their findings are consistent with the work of other scholars about the Canadian charter's significant global impact. It has been described as the leading influence on Israel's basic laws and the bill of rights of Hong Kong, South Africa and New Zealand.

 Another study found that "the decisions of Canadian courts are cited by New Zealand judges far more than those from any other jurisdiction."

Look to Canada

The waning of the U.S. Constitution's influence has been the focus of some debate in the U.S. in recent months, particularly following an interview with U.S. Supreme Court Justice Ruth Bader Ginsburg on Al Hayat TV in Egypt on Jan. 30.

Ginsburg was on an official visit to Egypt and Tunisia to help those countries with their transition to democracy following the so-called Arab Spring.

When asked about whether Egypt should look to other's countries' constitutions in drafting their own, she responded, "I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012."

She suggested Egypt turn to Canada's charter, as well as South Africa's Constitution and the European Convention on Human Rights.

In the nineties, Israel turned to Canada's charter when it drafted its basic laws on human rights.

At the time, Aharon Barak was a member and then the president of the Israeli Supreme Court. Earlier he had been Israel's attorney general. In his book, The Judge in a Democracy, he wrote that, "Canadian law serves as a source of inspiration for many countries around the world."

Israel does not have a written constitution. And Barak led what he called a constitutional revolution to give human rights supremacy in Israeli law and to give courts the power to overturn laws that are inconsistent with these basic laws.

In this initiative, Canada's charter was an important reference, he has said.

Today in Israel there is a debate about government plans to give the Israeli parliament, the Knesset, the power to overturn an Israeli high court decision that might overturn a given law as unconstitutional.

Canada's charter also figures in that discussion. This time it is Section 33, the sometimes controversial notwithstanding clause that gives Canada's federal and provincial governments the powers to override parts of the charter for up to five years

Israel affairs analyst Shira Herzog told CBC News in an interview from Tel Aviv, that the notwithstanding clause "has been referenced as a source for this kind of legislation." While the notwithstanding clause was born out of compromise to achieve a constitution, Herzog views the proposed Israeli law as designed to weaken the mandate of the supreme court.

The South Africa experience

South Africa also looked to Canada's charter when drafting its rights laws in the 1990s.

Partly that was because Canada and the U.S. define the concept of equality very differently in their respective laws, according to lawyer and rights activist Marilou McPhedran.

In an interview with CBC News, she said that "the Canadian charter served the founding of a democratic South Africa much better because one of the primary challenges was to find a way to incorporate a huge variance of diversity" in race, culture and religion, while deeply entrenching the core value of equality. 

McPhedran was chief commissioner of the Saskatchewan Human Rights Commission and is now the principal of the University of Winnipeg Global College.

So when they were trying "to create a nation where they could live together and accommodate differences and respect differences, there was a real turning to Canada," she said.

McPhedran took part in the South African government's ten-year review of their constitution on behalf of International Women's Rights Project.

She also notes that, in the process of drafting their constitutions, both Canada and South Africa were influenced by women's activism, resulting in strong equality provisions in the law.

She was one of the leaders in the campaign to include women's rights in the Canadian charter and also founded the Women's Legal Education and Action Fund, known as LEAF, which has been an important intervener in many charter cases.

Nathalie Des Rosiers, general counsel for the Canadian Civil Liberties Association, notes that South Africa has "gone a little farther" than the Canadian charter by recognizing socio-economic rights in its bill of rights.

South Africa's bill is also different in that it includes human dignity as one of the country's founding values.

While concurring with the general view that Canada's charter has had a significant international impact, McPhedran notes that in earlier days that impact was furthered by the efforts of the federal government and the Canadian legal community to assist many post-conflict states with drafting their constitutions.

But that was in earlier days, she notes, when the government provided "much more support than what we see today."