It’s a funny thing about the Canadian Charter of Rights and Freedoms. Supposedly we all feel so good about it that it defines us as a nation. But when you try to access the rights it purportedly guarantees, they slip away. Which isn’t what “rights” actually means.
Sounds reasonable, right? But it immediately continues that she “ruled Tuesday that the curfew – which forced Quebecers to stay indoors from 8 p.m. to 5 a.m. – infringed Charter-protected rights like freedom of expression and lawful assembly, but she said those violations were reasonable and justified given the public health context.” So you have rights, but only until you try to exercise them. What a rip-off. And what a consistent rip-off.
My attention was first drawn to the ominous underlying pattern by Richard Moon’s 2000 “The Constitutional Protection of Freedom of Expression.” His research indicated that when the Supreme Court examines claims that freedom of speech has been infringed, it reliably starts with a Lockean analysis that finds a violation.
Well, I say Lockean. But my notes at the time included an irritated observation that Moon’s index contained zero references to John Locke and 22 to himself.
Moon didn’t appear to find this approach to what some fools once called “inalienable rights” ominous. I beg to differ. First, however, I begged to check.
Being a good scientist, or a determined one anyway, I decided to test his hypothesis broadly against the evidence. (To digress once more, what we now call “science” was long dubbed “natural history” because the root of “history” is the Greek for “inquiry” not “long dull account of Grand Trunk Railroad.”) So I started watching how various courts ruled on various charter issues and, alas, Moon’s hypothesis held up well, as in badly.
Time and again our courts say now-you-see-it-now-you-don’t on rights. Including that Quebec Justice of the Peace. Remember, she’s hardly a judicial giant breaking bold new ground here. She’s just reflecting the largely tacit consensus of our betters that our rights “guarantees” are a sedative for the rubes, not an impediment to sweeping utilitarian state action by the guardians. But how can it happen?
The critical tool here is Section 1 of the charter. It gets far less critical attention than the supposedly sinister “Notwithstanding Clause” (S.33) but deserves far more because it is used far more often to far more damaging purpose.
It says: “The Canadian Charter of Rights and Freedoms 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.” Which is lamentably vague and nowhere to be found in, say, the American or British Bills of Rights. And in “A Christian Citizenship Guide 2nd edition,” André Schutten and Michael Wagner draw our attention to a striking fact about how our constitutional “living tree” quickly mutated S.1 into a strangling vine.
The Soviet Constitution and many others guaranteed your right to do as you were told. They weren’t always very explicit about it up front, but people quickly got the idea. Have Canadians? Do we really have a charter that empowers the state against us, not the reverse? Should we be proud of it?
It depends whether you think “rights” are a shiny distraction or a vital component of a free society.
