It is now 40 years since the glorious Charter of Rights and Freedoms sprang full-fledged from the brow of philosopher-king Pierre Elliot Trudeau, created Canada from some rather nasty foam bobbing about from sea to shining C-minus, and gave us sweet-smelling liberty where all had been sick-making darkness. Or so I gather from the retrospectives, though I’m having a bit of trouble reconciling that particular golden bough with the sour, wormy fruit before me.
A person called the Governor General just tootled at me, “On April 17, 1982, Her Majesty Queen Elizabeth II proclaimed the Constitution Act, 1982… For the first time in our country’s history, our rights and freedoms were enshrined in our constitution.” So that whole Magna Carta/Glorious Revolution business was just a load of old fish heads, and when Canada’s Founders spoke proudly about preserving liberty they were thinking of something else.
So apparently were our re-Founders. In 1981 there was considerable debate over the notwithstanding clause as friend or foe of our constitutional rights. Since we didn’t have any, it was all moot. But their quaint concern was whether the sovereignty of a parliament whose members were elected, alone among government officials, was a crucial protection or a pressing threat to them.
As I say, it was moot. And the main reason wasn’t that we’d been fools to go about saying “It’s a free country,” singing “True North Strong and Free,” or citing Joseph Howe’s stirring 1835 address to the jury when charged with libeling Nova Scotia’s colonial authorities by exposing their corruption, back when truth was not a defence: “Will you permit the sacred fire of liberty, brought by your fathers from the venerable temples of Britain, to be quenched and trodden out on the simple altars they [your ancestors] have raised?” (The jury, being as confused as the speaker, acquitted him and boldly nullified that unjust infringement on the ancient right of free speech.)
It was moot primarily because the notwithstanding clause was virtually never used, except by Quebec nationalists who cared as little about our historic liberties as the chattering classes knew about them. Whereas the crucial Section 1 slid in virtually unnoticed.
It’s the one that says here, drive a truck over those freedoms. (But not with a yucky Canadian flag.) More formally, the charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” But S. 1 doesn’t say how or by whom it must be demonstrated. Just “Now you see it, now you don’t.”
Recently I moderated a Canada Strong and Free Network discussion featuring former B.C. attorney general Suzanne Anton, QC; Queen’s law prof and Rights Probe executive director Bruce Pardy; and Brian Peckford, former Newfoundland premier and last surviving signer of the 1982 Constitution. And Peckford made it very clear that S. 1 was for real emergencies only. But the courts swooped and hung natural law from a “living tree” with it, making ruling after utilitarian ruling that the greatest good of the greatest number authorized them routinely to set aside traditional “negative” freedoms like free speech or assembly in favour of “positive” rights to take or impose this, that, or the other from or on your unwilling fellows.
Nearly everyone grasps that in Canada if you want to go to court to defend some long-established liberty to be left alone, fuggedaboutit. But if you want to force your doctor to perform a procedure they abhor, step right up. A National Post roundup of “10 important court cases that shaped Canada’s rights and freedoms” listed abortion, euthanasia, being employed by people you offend, taking illegal drugs, wearing religious weapons in school, etc. But not saying vile things or avoiding illegal search and seizure.
In our panel discussion, Prof. Pardy rightly argued that the Charter empowers the administrative state. But it’s not a plot. Rather, it’s the inevitable result of a particular way of thinking, then and now, of which embarrassing ignorance of pre-1982 constitutional history like the 1689 Bill of Rights is a secondary feature. The main problem is the unexamined conviction that utilitarianism is and should be our guiding principle.
One pundit just claimed the charter’s glorious success could be seen in that even the “populist right” embraced it over COVID, with “a veritable army of cranky lawyers, filing endless charter actions against every government bigger than a two house village’s!” As he said, “everyone wants the charter’s guarantees applied on their own behalf.” But his sneer underlined Anton’s point that those chumps are about to discover this charter’s not for them.
Just those who want to make you a better person whether you like it or not, and cheerfully go about making social justice omelettes by breaking classical liberal eggs.
