Others on the panel — civil libertarian Alan Borovoy, retired judge Barry Strayer, sociologist Lynn McDonald, and pollster Nikita Nanos — make little mention of Clark’s real contribution: as leader of the opposition, he forced protracted (and televised) consultation on the Charter, ensuring that not just suits had access to the framers. The consultation gained a momentum of its own, and the more average Canadians appeared before the parliamentary committee or watched the proceedings on television, the more citizens acquired a sense of ownership over the document. The result, according to Nanos, is that there is overwhelming support for the Charter twenty-five years after its creation, even if we are a little shaky on its actual content — nearly half of my compatriots are unaware of the notwithstanding clause’s utility or, indeed, its existence. Nanos also says that a significant number of Canadians are uncomfortable with the Charter. This, as far as I can see, is the strongest indicator so far that the damn thing’s doing something right. To sum up Nanos’s polling: we love it, it makes us anxious, we don’t really get it. These contradictions feel satisfyingly accurate.
Borovoy speaks cheerfully about the Charter’s shortcomings, civil liberties-wise. He says that its influence is so great that it can be used to circumvent moral judgment — most troubling in a post-9/11 world. Anti-terror legislation which contained the potential to curtail rights was said (by Irwin Cotler, Paul Martin’s justice minister) to be acceptable because it passed Charter muster, so that “legal expertise rather than ethical merit became the measure of whether we ought to adopt certain legislative initiatives.”
The next panel is a little rougher going, at least for me. Asked to examine the current state of Canadian democracy, we very quickly get into some esoteric academic/lawyerly discourse. Martha Jackman from the University of Ottawa speaks of the “false dichotomy between democracy and rights.” By the time I figure out that she’s talking about the illusion that protecting minority rights means you aren’t being democratic, she’s a hundred yards into the rhetorical woods and she hasn’t left any bread crumbs for me. Rainer Knopff, a political scientist from the University of Calgary, riffs on the “tyranny of the majority/tyranny of the minority,” a concept that he asserts most people present will already be familiar with. I am, of course, not familiar with it, and I struggle to piece together what it means, more or less succeeding just as he refutes the idea as being unworkably crude. Jackman asserts that the Charter tells the state not to do things, not what to do, and everyone in the room nods. I’m left hoping she’ll expand on this, because it seems fascinating (perhaps just because it’s a simple assertion and I get it), but the conversation takes off in other directions.
Somebody says something about how easy it is to use the Charter for political ends. The favourite example is Paul Martin’s disingenuous (or possibly just irresponsible) assertion during the last election that he would bar Parliament from invoking the notwithstanding clause if returned to office. Someone suggests that a separate court that deals exclusively with constitutional issues be created. It’s agreed that the Charter has taken up too much of the public policy horizon over the last quarter century. Jean-François Gaudreault-DesBiens from the faculty of law at the Université de Montréal points out to us that democracy “isn’t only institutional” and that other ways for the public to express itself, not formed by legislative or judicial edict, have atrophied. Andrew Petter, British Columbia’s former attorney general, posits that the Charter has empowered lawyers and “disempowered political discourse and citizens who are not comfortable or conversant with legal discourse.” He also talks about how reverence for the Charter has given the government lawyers who vet legislation too much sway, and they tend toward caution or complication in the name of avoiding a Charter challenge. Petter, the lawyer, seems profoundly uncomfortable with how much work the Charter has provided for his colleagues.
For me, all of this is like watching a group of mechanics stand around a car engine talking about how to soup it up. Or, more accurately, like watching a group of theoretical mechanics stand around nothing and speculate about how someone’s idea of a “car” might get souped up under different (imaginary) circumstances. It’s people who think deeply (and have been freed from the confines of practical application) tossing ideas around. Of course, I do believe that for some, the chance to participate in this kind of free, low-stakes exchange is useful, perhaps even exciting. Sure enough, I look around and the students are blissed out on the conjectural shrooms being tossed from the stage.
Next up is a plenary on “Citizenship and the Charter.” Somehow, the teaching of the Charter is lumped into this topic, and Roderick Macdonald, from McGill’s Faculty of Law, offers thoughts on how it has become the elephant in the room of law study. The Charter exerts a gravitational pull that has resulted in a refocusing of pedagogy, and its sexiness also means that other areas of study want for students. Macdonald is the only speaker to use visual aids so far: slides of emoticons, which decorate the imaginary email exchange he’s having with constitutional expert F. R. Scott (whose chair he holds at McGill). I find myself inordinately grateful for the help.
Université Laval’s Guy Laforest steps up and asserts, in French, that Canada had an awesome twentieth century and that Quebec has been a “comfortable exile” inside the country due to this prosperity. Ideally, we should be able to say “the Charter is us,” he says, but Quebec can’t share this identity marker. This fact is undeniable and, Laforest implies, unconscionable.
Quite separate from Laforest’s ideas, it’s his delivery that’s entertaining. The simultaneous translators are having a terrible time keeping up with his rapid speech and elliptical thinking. If a speaker pauses, the translator will typically wait until the sentence is complete before giving us the entire thought. When Laforest pauses, it’s usually so that he can head off in another direction, leaving one translator in the dust. At one point, he zigs, then zags, then zigs again without taking a breath, and the translator actually moans in my ear.
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