Canada Is the World’s Constitutional Superpower

We may not be the most wealthy nation in the world, or have the most powerful military. But when it comes to the legal influence of our constitution on other countries, it seems that Canada tops the list.

This Tuesday we celebrate the Charter’s 30th anniversary, and there is plenty to rejoice about. The New York University Law Review is publishing an article in their upcoming June issue which mathematically calculates the relative global influence of the constitutions of different countries, and the Charter of Rights and Freedoms surpasses even our American neighbours. The finding is so surprising in some quarters that it even made the front page of the New York Times, where they focus on the declining influence of the American constitution,

The Constitution’s waning global stature is consistent with the diminished influence of the Supreme Court, which “is losing the central role it once had among courts in modern democracies,” Aharon Barak, then the president of the Supreme Court of Israel, wrote in The Harvard Law Review in 2002…

Mr. Barak, for his part, identified a new constitutional superpower: “Canadian law,” he wrote, “serves as a source of inspiration for many countries around the world.” The new study also suggests that the Canadian Charter of Rights and Freedoms, adopted in 1982, may now be more influential than its American counterpart.

The Canadian Charter is both more expansive and less absolute. It guarantees equal rights for women and disabled people, allows affirmative action and requires that those arrested be informed of their rights. On the other hand, it balances those rights against “such reasonable limits” as “can be demonstrably justified in a free and democratic society.”

I made similar observations here on Slaw after conversations I had at the Supreme Court of Israel a few years ago.

The authors of the paper are David S. Law of Washington University and Mila Versteeg of the University of Virginia. Law just happens to be a Canadian, so it doesn’t hurt to root for the home team. The authors released an excerpt of their paper to the Canadian media earlier today:

Constitutional drafters rarely invent new forms of political organization or discover new rights from whole cloth, but instead lean heavily upon foreign examples for inspiration…

The fact that the U.S. Constitution no longer serves as the primary source of inspiration for constitution-making in other nations thus begs the question of what, if anything, has emerged to take its place. One possible heir to the throne also happens to be America’s closest neighbour. The Canadian Constitution has often been described as more consistent with, and more influential upon, prevailing global standards and practices than the U.S. Constitution…

The data suggest that the answer may be yes. Unlike the U.S. Constitution, the Canadian Constitution is increasingly in sync with global constitutionalism.

In an interview Law explained how the Charter changed Canada’s constitutional status on the worldwide legal stage:

“Once you turn every constitution into a series of numbers, you can numerically compare the similarity of any two constitutions,” said Law. “And there was a unique pattern on the part of Canada.”

When the Charter was adopted in 1982, the degree of similarity between Canada’s Constitution and those of other countries “nosedived,” said Law.

“As soon as the Charter is adopted, the Canadian Constitution shifts out of the global mainstream,” he explained.

But then, by the late 1980s, the Law-Versteeg analysis shows other countries moving “with a vengeance” to match Canada’s constitution.

“What this strongly implies is that whatever Canada did in writing the Charter,” said Law, meant that “other countries are imitating the Charter” or that Canada’s constitution-makers in the early 1980s “did an excellent job of anticipating global trends.”

Congratulations Canada. Your most endearing legacy may be the one that matters the most of all – creating the very framework required to operate a modern and just society.

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Comments

  1. The U.S. Constitution is more than 200 years old. Our Charter is 30. It’s way too early to declare it superior. In fact, despite this so-called rights gem, Canada almost blew apart in a referendum in the 1990s. If our Charter is so good, how come provinces have had to use the opt out clause? Also, Quebec was never part of the deal that was struck to bring the Constitution home and create the Charter. That is one-third of our population and more significantly the minority French portion that have never really embraced it but had it forced upon them.

    The first 30 years has been low hanging fruit for the Supreme Court of Canada, determining mostly criminal rights and following much of the U.S. on that front.

    The hard slogging for the Canadians is coming now, pitting rights against each other, like equality versus religion. Let’s see what Canadians think of our Charter in 50 years, when the courts start narrowing the scope of some rights at the expense of others.

    Also, where are property rights? Their absence is concerning.

    I’ll take the U.S. Constitution over the Canadian Charter anytime. It provides far more protections to individuals — especially in areas like freedom of speech and freedom of the press — than our Charter ever will.

  2. I agree with Jim M that it’s a bit too early to crow, and that a lot of hard questions are still coming up. I disagree with him about the notwithstanding clause – hardly ever used outside Quebec, and I don’t think that’s a problem; about property rights – an open invitation to fight every kind of government action on the basis that one’s property (i.e. right to do whatever one wants without regard to others) has been infringed (the US took over 100 years to fight that one out, and the right to govern is back under attack there); and about secession – in fact the SCC managed to give a reasonable interpretation of the Constitution (not the Charter in particular) on that point.

    Quebec was not one-third of the population in 1982, and there are lots of reasons to think that no deal at the time would have been acceptable to the then-government of the province. It’s better for everybody that the rest of the country got on with something that has turned out to be pretty good, for Quebec and for others. I don’t think the lack of Quebec’s ‘signature’ on the Constitution as repatriated undermines it unduly even in Quebec. Of course the sovereignty folks won’t like any Canadian constitution but are happy to have another stick to beat it with. In any event I don’t think that it’s the distribution of powers between the central and local authorities that other countries are looking at, or even the amending formula. I could be wrong…

  3. David Collier-Brown

    My wife commented that a York political science professor of her acquaintance had quite a nice business advising new and nascent states on how to write a modern constitution.

    We’ve been a very quiet (Canadian, eh?) superpower for a while.

    –dave

  4. I don`t think I could do much better than to point to Madame Louise Arbour`s comments on this earlier today:

    Many will deplore so-called judicial activism and the legalization of politics. They are wrong. Fundamental rights enforced by independent courts enrich a democracy that has set constitutional limits on itself. Charter litigation has provided a high-quality intellectual forum in which to debate issues that are not best left to majority diktat. Led by the Supreme Court, the Canadian judiciary has defined its proper place in constitutional governance. First assertive and willing to undertake substantive review of legislation, it has set a predictable framework for acceptable limitations on rights and avoided an adversarial relationship with Parliament, preferring dialogue to confrontation.

    Unlike the U.S. judiciary, Canadian courts have, for the most part, avoided the taint of partisan political allegiances that erodes confidence in the judicial process. My own career would be unimaginable in the United States. I had three federal judicial appointments: to the Ontario High Court, to the Court of Appeal and then to the Supreme Court of Canada – the first two by a Conservative government, the last one under a Liberal one. Canadian judicial writing is accessible, often consensual, and dissent always respectful. It has set the tone for the peaceful resolution of some of the most divisive issues in any society.

    Unfortunately, political parties have been impoverished by the rise of judicial prominence, or perhaps simply in parallel to it. The disenchantment with political life is currently widespread in mature democracies. But in terms of substance, the calendar of the Supreme Court of Canada compares very favourably with the platform of political parties.

    Of course you`ll be famously familiar with her dissent on economic rights in Quebec v. Gosselin.

  5. m. diane kindree

    One would think that a “constitutional superpower” like Canada would protect and defend the equal rights of Her Majesty’s Letters Patent (1947) under our great Charter, eh?
    Is this an example of our super constitutional status in action when neither the provincial gov’t, federal gov’t or the governor general care enough to execute, legislate or judicial protect and defend a constitutional precedent in the form of the Canada Crown (Her Majesty’s Letters Patent)?
    Where is our national unity and pride when our declaration of allegiance to the Canadian Crown is publicly misrepresented for 15 years? Not very inspirational or super, eh?

    Omar, my question is simple:
    If the Canadian Constitution can’t protect and defend the Crown what kind of global influence should it really have?

  6. M Diane,
    I don’t have a simple answer for you because I simply don’t understand specifically what you’re referring to, presumably in relation to the Governor-General.

    I will point to Andrew Coyne’s editorial though, pointing out that the focus of the Charter is governmental powers as against its citizens,

    All laws, not just the Charter, bind the legislatures that pass them, at least until they are changed. All laws, not just the Charter, limit the discretion of governments. That is precisely their point. The purpose of law is not to restrain the citizens: governments can do that very well in its absence, as in any dictatorship. It is, rather, a restraint on government. We do not trust our leaders enough to permit them to rule by fiat. We make them put it in writing. We grant them this much power, and no more.

  7. Ms Kindree’s concerns are set out at length in comments to a post (no doubt intended as an innocent information item!) on Queen’s Counsel appointments. I myself have nothing to add to what I said there (except to note that the issues raised have nothing to do with the Charter, though they are constitutional in focus.)

  8. m. diane kindree

    Hi John,

    The CC R&F outlines under Equality Rights 15(1): “equal protection and equal benefits” without discrimination. I do believe the protection and defence of Her Majesty’s Letters Patent (the legal entity of one person) should also be addressed by applying this broader charter context. Thank you for correctly identifying my comments as just another “innocent sharing of information”.

  9. I had in mind Shaunna’s original post saying ‘here are Alberta’s QCs this year’ as the innocent post. The discussion of the duties of governments to enforce respect for Her Majesty via regulation of the holders of Her Majesty’s letters patent is a much more complex issue, as our exchanges (and those of others) in January demonstrated.

    I doubt that HMQ is included as a beneficiary of s. 15 of the Charter.

  10. m. diane kindree

    It is my contention that precedent in the Constitution should also be demonstratable in the Charter. My arguments are in support of Articles 6 & 7 of the United Nations’ universal declaration of human rights. Firstly, Her Majesty’s Letters Patent is the recognition “of a person before the law”. Secondly, if a province applies an alleged flawed and invalid constitutional act (QC Act)and fails to amend legislation to protect the rights of that person, given that protection exists elsewhere in Canada, then that is discrimination. Thirdly, if the public interest (recognition of inalienable rights) to dignity, respect and equality under the law is our pledge, then let’s start with this precedent on both fronts (the Constitution and the Charter).
    I guess I would really like to see some determinism and legal enterprise which objectively measures Canada’s superpower on this issue. If Her Majesty’s Letters Patent can’t be protected and defended what Charter course can the rest of us take?

  11. m. diane kindree

    What future challenges awaits the Charter?

    According to three of the Charter’s architects, R. McMurty, R. Romanow, & J Whyte, the Charter “will centre on equality guarantees as well as the open-ended guarantees of life, liberty and security.”

    This quote from Jonathan Kay (National Post) is apropos of the Charter’s power:….”But the only way that language can become reality is if the elites charged with honouring the charter treat their task with deference and humility.”

    In context, the Constitution is the superlaw (supreme law of the land)directing gov’t as to what laws it can and can’t write. The Charter is part of the Constitution which outlines (not absolute due to the enactment of Notwithstanding clauses) how gov’t is to respect certain human rights. The goal of this legislation is to limit the discretion of the government by granting the people (represented by the Queen) equal protection and a remedy in our courts.

    So why hasn’t the offending Q.C. Act legislation in B.C. been tossed out as ultra vires the Constitution?

    Section 1 of the Charter would suggest this to be “demonstrably justified in a free and democratic society.”

    What legal role does Her Majesty the Queen (“fount of justice”) have in our Justice system?

    The judicial function of our courts are performed in trust (Royal Prerogative), in the Queen’s name by officiers of Her Majesty’s Court. This is a legal distinction (judicial independence)which is considered, in a democracy, to be another safeguard to help ensure a reasonable and principle balance between the gov’t and the people.

    Should this loophole (lack of a guarantee of adequate protection and defence of Her Majesty’s Letters Patent)in our Constitution and its Charter be examined? Absolutely.

    Is it really that complex? Absolutely not.

    When those charged with honouring the Constitution and Charter fail to address this serious issue then, I allege trust of the Royal Prerogative has been breached. This is consistent with breaching the public trust as well as allegedly undermining the Charter guarantee of equality. As preciously noted, the Q.C. Act legislation (B.C.) lacks a remedy and therefore, is allegedly invalid.

    I propose that every Q.C. appointed lawyer in B.C. and across Canada surrender their titles, to the AG of the province, in a “flash mob” protest (dancing is optional) to ensure equal protection and defence of Her Majesty’s legal distinction across Canada. In my humble opinion, this action would have far reaching legal influence where it is needed most, in Canada.