The Canadian Charter was naive from the beginning


Commentary

I was having lunch with my friends. She was complaining about the man in her life. “He’s not in charge of the relationship,” she lamented, “and when he does, he makes it wrong.”

Forty years ago, when Canada enacted the Charter of Rights and Freedom, Canada requested the courts to take charge of our basic rights. They did, but they did it wrong. And unlike my friends, we can’t get out of the relationship.

The Canadian legal system, derived from the United Kingdom, is partly based on the principle of legislative superiority. Parliaments and state legislatures can usually enact any law within their jurisdiction on request. Prior to 1982, our Constitution contained only a few restrictions on these powers. Courts rarely declared the legislation unconstitutional, usually because Congress or the state stepped in. In most cases, courts had limited authority, limited approaches, and predominantly legislative advantages.

That changed when the 1982 Constitution, including the Charter, was enacted. The charter contains the gist of good thinking. The rights and freedoms of some individuals are so important that even elected legislatures cannot be trampled. The Charter is a list of liberal freedoms, meaning that it has protected the autonomy of individuals from groups, as embodied by the state.

These freedoms are primarily “negative” rights, not “positive” rights that require governments to take action to provide resources, access, procedures, etc., but to the lives of people. It means that it is prohibited to interfere. Under the Charter, everyone has the freedom of conscience, religion, thought, belief, opinion, expression, assembly and association. Human right to life, freedom, and safety. The right to be treated equally under the law. more. The legislature and government may not infringe these rights unless they are proven to be “reasonable restrictions” in Section 1.

However, the text of the Charter is ambiguous. What does “free speech” mean? It may look simple enough: there are no laws restricting what you say or write. Except sometimes they can. If you threaten to beat your neighbor, your remarks are not only speech, but also assault that you may be prosecuted. If your ex-business partner falsely claims to be cheating on his taxes, your statement is vulgar and you may be sued for it. What the charter looks like in black and white does not mean that the charter somewhere in gray. Ambiguous text does not identify where the line is drawn. Its mission belongs to the court. In other words, the courts, not the legislature, are currently the best.

Things might have worked if the court had, as far as possible, limited to identifying the boundaries of rights according to the original intent of the document. Instead, since 1982, the Canadian Supreme Court has taken over the task of formulating social policy. It was done primarily through a progressive lens and has slowly transformed what was drafted as a roster of autonomy into a collective value and priority obligation of the governing state.

As reported in Toronto starAt his first press conference as Chief Justice of the Supreme Court in 2018, Richard Wagner is very proud to agree that the court is “the most progressive in the world.”In the editorial published in Globe and Mail When she was still on the bench, Judge Rosalie Abella of the Supreme Court wrote that the Supreme Court was “the ultimate arbitrator for the values ​​that are being contested in society to win.” The Constitution is a “living tree,” which courts frequently insist, and its meaning can be adjusted as circumstances change.

In Canada, under court rule, free speech does not mean that you can speak your mind, but the state may prohibit you from “discriminating” in your speech. Equality does not mean that everything follows the same rules, but that different rules need to be applied to different identity groups in order to produce the same results. Also, the “reasonable restriction” clause in Section 1 does not mean that rights can be infringed only in extreme circumstances, but for social reasons (in the eyes of the court) it is worthwhile. In some cases, it means that the government can commit “proportional” infringement. Indeed, the court has ruled that government agencies have the right to infringe the rights of the Charter if they do so in the same way as impartiality.

Courts cannot be dismissed except by the High Court, and no court is higher than the Canadian Supreme Court. In February Gloves In a column blaming truck drivers and other Canadians for seeking release from their vaccination obligations, former Supreme Court Secretary Beverly McLaughlin said the existing “accountability mechanism” (currently existing courts). The only alternative (meaning) was suggested to be non-governmental.

The “noth with standing” clause of the Charter is rarely used, but it is not the solution to all of these. The provisions that allow Congress and the Legislature to circumvent certain Charter rights are the last trace of legislative superiority in the context of the Charter. But the legislature is also not a credible advocate of liberty. That was the first point of the Charter. Checks and balances do not protect an individual’s rights if the legislature and the court basically agree that others are more important.

Mainstream political parties do not oppose the current state of the Constitution. Attempting to amend the Charter is a fool’s errand subject to the official “7/50” and requires resolutions of the House of Commons and the Senate, and at least seven states that make up at least half of the population. Even with such prospects, opening the worm’s constitutional can can exacerbate the situation given the current state of Canadian politics. Canada needs a better constitution, but there is currently no way to get there from here on the card.

Looking back, the charter seems almost naive. If someone else grabs the handle, it’s up to them where they go.

The views expressed in this article are those of the author and do not necessarily reflect the views of The Epoch Times.

Bruce Purdy

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