Is Canada’s Charter better than the US Constitution?

OTTAWA, Canada — If there’s one thing we Canadians relish it’s a chance to tout our superiority over Americans. 

This national trait is perhaps only exceeded by our propensity to wallow in feelings of inferiority. In the past few years, for instance, we’ve tended to go on about how Toronto’s banking sector held up nicely when Wall Street melted down in 2008.

But that one’s getting a bit old, so we welcome the opportunity this week, on the 30th anniversary of our Charter of Rights and Freedoms, to boast, instead, of constitutional superiority. Two US scholars, politics professor David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia law school, offer us timely cover for our smugness.

Their widely noted recent study, “The Declining Influence of the United States Constitution,” published in the New York University Law Review, tracks the rising prestige of Canada’s 1982 constitutional reforms in, among other places, South Africa, Israel, New Zealand and Hong Kong, as the US model’s longstanding luster fades.

The Charter, a signature prime-ministerial legacy of the late Pierre Trudeau, was purpose-designed to guarantee a suite of rights in countries that follow the British common law tradition. The way it safeguards fundamental freedoms is flexible, in comparison to the somewhat more rigid US guarantees. For starters, it directs courts to interpret any law that might infringe on rights in a way that allows limits “justified in a free and democratic society.”

That’s obviously a capacious loophole, raising the specter, for those inclined to worry about judicial activism, of judges ruling however they please. Indeed, ever since the Charter revolutionized Canadian rights law, there’s been heated debate over how far appointed judges should go in using it to strike down (or uphold) controversial laws passed by elected politicians.

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It’s when we turn our attention from the Charter as a document to the role of judges in interpreting it that the contrast between Canada and the United States gets really interesting. In fact, much of any perceived advantage the Charter model offers might really be a reflection of the strength of Canadian courts.

Consider a couple of landmark rulings on who gets to spend how much money to gain political influence in North America. The world has looked on open-jawed at the impact of the US Supreme Court’s staggering 2010 decision in Citizens United v. FEC, which overturned decades of US legal and electoral tradition by striking down any limits on what corporations and unions spend on TV commercials seeking to influence political campaigns.

Far less widely known, naturally, is the Supreme Court of Canada’s 2004 decision in Harper v. Canada, which found that while third-party spending limits during political campaigns do infringe on the right to free expression, that infringement is justified to prevent the affluent from dominating political discourse. And allowing the rich to buy that dominance would, the court rules, undermine another Charter-protected right, the guarantee of meaningful participation for all in elections.

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The contrast between the US and Canadian outcomes in these cases evidently has less to do with the constitutional documents being interpreted than the judges doing the interpreting. The Canadian process for selecting judges for the top court is much less open and democratic than the US system, but has resulted in a far less partisan nomination process — and a bench less starkly divided along ideological lines.

Any American liberal reading this might by now be making mental room, alongside an idealized version of Canadian-style health care, for a bit of cross-border Supreme Court envy. If so, that would be a more appropriate reaction, at least, than fixating on our Charter of Rights and Freedoms.

For, much as it deserves respect, the document itself, even on its 30th birthday, shouldn’t be an isolated object of pride. Like the venerable US Bill of Rights, the Charter is only as sound as the judges our elected leaders choose to elevate to interpret its strictures.

If Canada’s constitutional model has indeed outstripped the American alternative, as Law and Versteeg suggest, the deeper difference will surely be found, not on parchment, but in politics.

John Geddes is Ottawa bureau chief at the Canadian weekly magazine Maclean’s.

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