Civil Rights and the Achievements of the Charter and the CCLA

By Didier Chelin

I took my internship at the Canadian Civil Liberties Association (CCLA) as an opportunity to advance a specific vision of freedom. Yet this vision is hardly original, having already been articulated by one of the political leaders most responsible for inventing the welfare state. And he himself did not invent that vision. He merely crystallized the collective dream of a people having just emerged from the worst economic depression of the twentieth century, and still in the throes of World War II. In his State of the Union Address of January 6, 1941, President Franklin Delano Roosevelt looked forward to a world “founded upon four essential human freedoms”. Three of them (freedom of speech, freedom of religion, and freedom from fear) refer to civil and political freedoms: spheres of personal autonomy with which the state is not to interfere. But Americans having lost their jobs and their homes during the depression would have found this vision lacking, had Roosevelt not added a fourth and very different component. His fourth freedom, which he called “freedom from want”, is positive rather than negative. It requires the state to step in and provide all citizens with the socio-economic conditions necessary to lead a flourishing life. Freedom from want, the President maintained, depends on economic arrangements designed to “secure to every nation a healthy peacetime life for its inhabitants” (Rhoda E. Howard-Hassmann & Claude E. Welch Jr. editors, “Economic Rights in Canada and the United States”, University of Pennsylvania Press, Philadelphia, 2006, p. 211). Since people disempowered by homelessness, unemployment and lack of education are not helped by political freedoms alone, civil liberties, as Roosevelt saw them, had to concern distributive justice as well.

The CCLA embraces Roosevelt’s multifaceted vision of civil liberties whenever progressive legislation allows it to do so. The Charter enshrined in our Constitution constitutes the organization’s main working tool. It does a great job advancing freedom of speech and worship, and protecting individuals and groups against freedom from fear. But it contains very few positive rights, and no explicitly recognized economic right. I would like my two blogs to be read as a single narrative about the CCLA’s successes and obstacles in advocating for a robust notion of civil liberties and social justice. I have decided to divide my two blogs according to the two sets of rights Roosevelt was promoting. Here I focus on civil rights, the area where both the Charter and the CCLA are at their best.

THE CCLA AS A POLITICAL PLAYER

In the area of civil rights, the Canadian Charter has transformed the CCLA into a major player in Canadian politics. By articulating its mission around a Charter-based framework, the organization improved its standing in relation to courts and legislatures. The constitutional accountability of Canadian lawmakers at every level of government has become one of its chief objectives. At a fundamental level, the CCLA insures that Parliament and provincial legislatures adopt Charter-compliant laws and programs. This is the goal of its “Charter First” campaign, set forth on its web page.[1] In a recent report, the organization expanded on this “Charter First” initiative. It focusses especially on the question of assisted dying treated in Bill C-14, the Federal Government’s response to the invalidation of the prohibition against assisted dying by the Supreme Court.[2]

Note that the CCLA intervened in Carter, the case that provided the Supreme Court with the opportunity to clarify the constitutional status of assisted dying.[3]

Since strategic litigation was successful in this case, the report I have referred to illustrates a typical pattern with respect to the CCLA’s participation in Canadian lawmaking. A successful litigation compels Parliament or a provincial legislature to revise its initial stance. This enables the organization to subsequently monitor in detail, as it does in this report, the legislative response to the victory it won through litigation. Whether or not interns feel like active participants in national lawmaking depends heavily on what kinds of policies the Charter realistically allows the organization to advocate for. That’s why prospects are good in the area of civil rights. As I shall explain in my next blog, the organization is far less successful when trying to read a socio-economic guarantee into a specific Charter provision. More often than not, it is hampered by the conservative interpretation of the Charter long entrenched in the Canadian judiciary.

THE CHARTER AND THE CCLA’S INCLUSIVE CULTURE

The ways in which our Constitution shapes social environments, and even seemingly trivial details about the relationship between friends and colleagues, is not always emphasized. But this must be done in the case of the CCLA. An organization acting as the guardian of the civil liberties guaranteed by our Constitution implicitly commits itself to creating a working environment expressive of those basic constitutional values. The Canadian Charter may not provide a blueprint for a socialist revolution. But it does provide tools to promote basic attitudes and beliefs conducive to a more inclusive society. Its great contributions to increasing the openness of Canadian society include the recognition of gay marriage, the public affirmation of gender diversity, and the consolidation of multiculturalism. Through Section 15, discrimination can now be viewed through a new intersectional lens more faithful to the experience of marginalized groups. At a more general level, Roosevelt’s emphasis on freedom from fear and freedom of speech become powerful priorities for all those living in decidedly unsafe environments, afraid to be themselves, speak their minds and express their needs.

The CCLA managed to integrate basic inclusive instincts into its organizational culture. To begin with, as a volunteer with a disability, I did struggle with some environmental barriers. But these had to do largely with the inaccessibility of governmental reports to blind readers unable to use certain electronic formats. Neither the volunteers I worked with nor the staff ever second-guessed my own account of these barriers as I experienced them firsthand. At a different level, many people with disabilities have good reasons to fear social isolation from their peers. When confronting social environments that tend to insulate them from others, these environments are unsafe for them in that respect. They are deprived of the freedom from fear which Roosevelt saw as a universal good. Many blind people miss crucial opportunities for social interaction with their peers and colleagues, simply on account of mobility-related barriers. At the CCLA, all volunteers usually lunched together in a park that was difficult for me to access alone. I always found another volunteer to help me get there, even when it meant stopping on the way to order food. While the Charter was far from the minds of volunteers during breaks, that document promotes equality, which includes equal opportunity. They could not work continuously with that document without internalizing the values it implicitly promotes.

A more far-reaching illustration of this internalization came from the incredible sensitivity of all volunteers to gender diversity. Near the middle of my internship, the Orlando shooting happened. Some volunteers, belonging to gender minorities, felt personally affected by it in various ways. We spontaneously spent an entire lunch discussing the tragedy and what it reveals about the aggression that gender minorities still have ample reasons to fear everywhere. No one planned this in any way. One of the volunteers, belonging to a gender minority, mentioned it and expressed how he/she was touched by it in a special way. In many groups, members of gender minorities do not even self-identify as such, let alone sharing their grief for an act of persecution affecting their group. Within this particular group, however, it just went without saying that peers in this situation ought of course to be heard and supported. While Roosevelt spoke of freedom from fear in the context of military aggression and freedom of speech in the context of the right to political dissent, this one lunch secured both at once for the volunteers concerned. Because the Charter is enforced by courts, its impact is often assessed only with reference to strategic litigation. Yet if the only function of constitutional guarantees was to secure court victories, the vast majority of citizens would stop caring for them. The CCLA enforces them first and foremost by selecting volunteers reflecting the diversity of Canadian society, and seeing to it that they uphold Charter values not just in their work but also in their interactions. It promotes freedom of expression by creating a working environment enabling rich and frequent communication, by making working space a safe space.

As much as shifts in social attitudes can accomplish, however, these attitudes are partly shaped by economic conditions. In my next blog, I will be less optimistic, because our Charter says virtually nothing about distributive justice. Unsurprisingly, the CCLA’s influence is far more limited in this sphere.