Behind the Scenes: Lorraine Weinrib

By Laura Rosen Cohen

From the Spring/Summer 2008 issue of Nexus.

Prof. Lorraine WeinribHockey, maple syrup and the Mounties may be the most familiar Canadian products marketed throughout the world.Yet one of Canada's most important and sought-after "exports" internationally needs no trademarked brand.

It's the Canadian Charter of Rights and Freedoms, and Professor Lorraine Weinrib is a first-hand witness to the impact our Charter has had around the globe. In this conversation with Nexus, the celebrated constitutional scholar describes her experiences taking the Canadian Charter on the road to judges, legal experts and students in South Africa and Israel.

Sun streaming through her office windows,Weinrib sits comfortably on her full length couch. It's a family heirloom, and the only horizontal space that is bereft of scholarly paraphernalia. Student essays, photocopies of articles, and law journals overflow on bookshelves, and create paper towers covering every inch of her desk, chairs, and floor. Even her doorway cannot escape the eruption of academic ideas and literature, with dozens of books peppered with colour-coded sticky notes threatening to violate all fire safety codes.

The office is a perfect metaphor to its owner - a scholar warmly admired by students and colleagues for her boundless enthusiasm and passion for Canada's constitution.

During our interview, Prof.Weinrib offers a steady flow of commentary on constitutional law, history and theory as well as comparative constitutional insights. The ideas shoot out at a staccato pace. She started to work on the Charter in the late 1970s and 80s as a constitutional expert in the Ministry of the Attorney General of Ontario.

"My involvement in the project dates to the Trudeau era," says Weinrib. She recalls the time period of her life as intensely challenging and requiring enormous creativity for legal scholars, public interest groups and government lawyers involved in formulating the proposed Constitutional amendments that would entrench the Charter.

"It was a huge learning curve for me," recalls Weinrib. "My law school education didn't really go beyond federalism, or include constitutional history or theory.There was also no mention of constitutional principles, conventions or amendments. I hadn't even studied the Canadian Bill of Rights," she adds.

Weinrib characterizes the entire process as deeply comparative, and a process that began with an examination of the strengths and weaknesses of the American Bill of Rights. Eventually, she says, the substantive principles and institutional arrangements that captured the spirit of the international post -WWII world and human rights revolution were captured in the Charter.

"The American Bill of Rights is rooted in a particular historical moment. It reflects the particularity of the American national ethos," says Weinrib."The Canadian Charter, in contrast, incorporates concepts that are both abstract and transformative, including respect for inherent and equal human dignity and the rule of law, and a view of the Constitution as a living instrument," she adds.

According to Weinrib, it is these particular features that make the Charter so appealing to other countries looking to develop their own rights-protecting systems.

"Our Charter has the added legitimacy of a remarkable degree of public engagement in its formulation and in the litigation process. It gives our legislature a distinctive process for overriding particular rights through the 'notwithstanding' clause, so that the judicial role can provide a forum of reason, but not the last word," she explains.

Weinrib's role in the creation of the Charter solidified her as Canada's foremost scholar in the area both in Canada and internationally. Just over a decade ago she was invited to South Africa and Israel, young democracies that were beginning to develop their own rights-protecting systems.

Professor Weinrib's work in Israel has included advising public interest groups, lectures to the senior judiciary and teaching law students at the law schools of Hebrew University and the University of Tel Aviv's Centre for Advanced Legal Studies.

Her visits to South Africa included public lectures, classroom teaching, and seminars for judges and practicing lawyers."It was a great privilege to witness the transition from apartheid to a liberal, socially- committed democracy, through peaceful means, and through the promise of rights protections that would enfranchise the disenfranchised majority," says Weinrib.

Upon the fall of the apartheid regime, she explains, there was an immediate need to set up new political institutions, as well as a constitutional court to process cases. She had an opportunity to meet with the newly appointed President of the Constitutional Court to advise him on the special procedural and institutional features of litigating constitutional rights.

Both countries looked to Canada as a model for using public power to respect fundamental rights and freedoms. She says that other countries such as Scotland,New Zealand, Australia and Hong Kong continue to look to the Supreme Court of Canada for leadership.

"When I first came to the law school in 1988, I didn't imagine that I would be involved in anything more extensive than teaching Canadian case law. My constitutional travels have given me an opportunity to understand the importance of rights-protection in contexts that are much more troubled that pre-Charter Canada," she says.

Her experiences have motivated her to learn more about constitutional development in other countries and study the history and theory of rights-based democracy in general. Yet she feels there is still much research to be done on the subject, and much knowledge to share with the rest of the world.

"Interestingly, the most startling discovery for me has been that the most difficult constitutional system to understand deeply, remains my own."