William Gairdner: The Charter at 40: How Canada Got Re-Colonized

Prime Minister Pierre Trudeau gets a round of applause from Liberal MPs in the House of Commons after signing an accord with the provincial premiers during constitutional talks, in Ottawa on Nov. 5, 1981. CP Photo/Fred Chartrand

Commentary

We are regularly treated to surveys of public opinion about Canada’s 1982 Charter of Rights and Freedoms. Canadians love it, though the vast majority have never read it. Not a word. The real story of the Charter, the reasons for it, and its political and moral consequences are widely ignored.

Prior to our founding, settlers in the colonies that became Canada lived under English law according to English Parliamentary legislation and common-law precedent. Laws made by Parliament were considered the voice of the people, even—Vox Populi, Vox Dei—as the voice of God, and therefore the “supreme law” of the land. This is still the case in England, which to this day has no written Charter or Constitution. The overarching message of this long, hard-won British tradition is that the elected Representatives of the people are free to make or unmake the laws of the realm without fear of dictation or limit by any higher power.

In the rising democratic spirit prior to Canada’s founding, however, colonists became fed up with control over them by British colonial officials and by bewigged judges of the English Privy Council 6,000 kilometres away. So they periodically revolted to achieve “responsible government.” They wanted those who made their laws to answer to the people governed by them.

It wasn’t until the British North America Act of 1867 creating the Confederation of Canada that we got fully responsible government, and Canadians began growing their own British-style parliamentary and common-law tradition. The only exception was the civil law in Quebec which continued to rely on the French Code Napoléon. At last, Canadians could hire and fire their own lawmakers.

This hopeful regime lasted a mere 115 years. In October of 1980 on CBC Television Prime Minister Pierre Trudeau had already announced his lifelong intention “to constitutionalize a Bill of Rights,” and he was prepared to try this unilaterally. But the Supreme Court insisted on consent of the provinces, and after intense federal-provincial deal-making, the passage of The Canada Act 1982 made it very clear Trudeau had succeeded in muscling into existence a French-style Charter of Rights and Freedoms. Why? Because he despised and publicly mocked the English concept of government by a Parliament of changeable Representatives cobbling together laws from their debates, absent any higher guiding principles. And he was unsettled by the idea of ten provincial legislatures making their own sovereign laws which in one province might be in conflict with those of another.

In his first book, “Federalism and the French-Canadians” (1968), Trudeau displayed a Machiavellian awareness that although our founding BNA Act of 1867 was designed precisely to block heavy-handed rule from the top, what he pejoratively called our “checkerboard” federal system might serve as “a valuable tool which permits dynamic parties to plant socialist governments in certain provinces, from which the seeds of radicalism can slowly spread.” But who said Canada wanted socialist government? Who said Canada wanted to be radical?

As if blind to the grotesque and bloody evils of national and international socialism that had so recently caused the deaths of millions, Trudeau persuaded himself that “there is a greater need than ever for an enlightened socialist approach ...” But what kind of enlightened socialism was he thinking of? In January of 1969, in response to a question from British students, “What kind of country would you like to make Canada?” he replied: “Labour Party socialist, or Cuban socialism, or Chinese socialism—socialism from each according to his means.” So here, barely a quarter century after World War II, we had Canada’s Prime Minister striding forth boldly under the red flag of socialism in a nation that had just sacrificed 45,400 of its own citizens… fighting against socialism. No one blinked.

Trudeau understood that the sovereign right of unrestricted law-making by elected representatives was a mark of the glory and freedom of the English system. But to a francophone intellectual, the very idea of a nation without a single supreme legal Code that like a magnet orients all political and moral iron-filings below, so to speak, was abhorrent. He couldn’t get out of his mind the mocking observation of Voltaire who, when travelling in England had famously said, “You English change laws as often as you change horses!”

Attorney General Jean Chretien signs the proclamation repatriating Canada's constitution while Queen Elizabeth II watches, in Ottawa on April 17, 1982. Prime Minister Pierre Trudeau is standing behind Chretien. The Canadian Press/Ron Poling

That was true. For the English have always felt local law should reflect local interests. Hence the strict division of central from provincial powers enshrined by the Founders in our BNA Act. But Trudeau disliked British legislative localism, and one day his dislike boiled over when he declared that our elected representatives, once 100 yards from Parliament, were “just a bunch of nobodies.” It was a disgraceful thing for a Prime Minister to say about his own Ministers. Ugliest of all to him was the fact that elected nobodies had the unfettered right to create statutes in the name of “the people” which stood as “the supreme law of the land.” Too many horses to change. What he wanted instead was a sparklingly clear Charter of precise logical principles from which all national policy and law would follow, as the night the day.

Trudeau’s lifelong intellectual motto was read every day on a wall-hanging created by artist Joyce Wieland for his home at 24 Sussex Drive in Ottawa, on which were embroidered the words “La raison avant la passion”—reason before passion (or above, or over, passion). It was a pithy rendering of his personal Cartesian passion for the crimped belief that the good life can only flow from clear reasoning. Just before he began his personal political campaign to change Canada, he declared: “Reason over passion—that is the theme of all my writing.” (“Federalism and the French Canadians,” p. 127.)

Trudeau seemed unaware that for the English, this notoriously limiting and controlling Gallic conception of the best way to live had long since been stood on its head by the Scottish Enlightenment philosopher David Hume, who shook all confidence in mere human reason by arguing persuasively that “reason is the slave of the passions.” It’s a tool that can be turned to any purpose and therefore gives a false confidence. A century and a half later, G.K. Chesterton, another Englishman, expressed the same distrust in mere reason when he wrote that “the madman is the man who has lost everything except his reason.” They were both warning that rational arguments are usually simplifying and circular justifications for underlying passions and motives. Trudeau was never able to admit this sobering and very practical English truth about himself.

The Charter of Rights and Freedoms he all but single-handedly created and dropped on our nation as the new “Supreme Law of Canada” on April 17, 1982, fell on our political system like a guillotine, ending the supremacy of the people in their own Parliament. With the same stroke, and because abstract terms such as “equality,” freedom,” “rights,” and so on are never self-interpreting, he set in motion a long and continuing stream of judge-made personal interpretations of those terms (themselves often conflicting), the sum of which is now described by every lawyer in Canada as “Charter law.” In effect, this is law made by unelected judges, each with his or her own personal political and moral persuasion and passion, who are never directly responsible to the people and cannot be removed by any power in the land. To this extent, and specifically because elected Parliamentarians today will not presume to create or change a law they fear might be in conflict with some principle of the Charter (OMG, what will the judges say? Will this survive Charter scrutiny?), Canada’s Parliament has been infantilized.

Most judges have taken this new quasi-dictatorial Charter role deeply to heart. One example will do. Here is the Right Honourable Madam Beverley McLachlin reflecting on her 17-year role as Canada’s Chief Justice: “My job is to think about what’s best for Canadian society on the particular problem that’s before us, and give it my best judgement …” (National Post, May 23, 2015). But that is entirely untrue. It was her job to rule on the facts of the cases before her according to the pertinent law of the land, not to ponder what’s best for Canadian society. That’s the job of the Representatives we send to Parliament. But she considered herself a progressive politician as much as a judge and ruled accordingly. Had she been of conservative temperament, she would likely have ruled another way. But either way is to be a political activist more than a judge.

The reality of such judge-made Charter law means that with one stroke, Trudeau shoved us back into the political condition under which we suffered prior to 1867. In effect, Canadians got re-colonized. Not by a foreign power, but by their own hand. Trudeau was not citing Magna Carta, Locke, Blackstone, or Burke as his intellectual teachers. No. He embraced instead the writings of the main French architect of totalitarian socialism Jean-Jacques Rousseau, the inspiration of Marat, Robespierre, and Danton—murdering revolutionists all—who justified all their actions according to Rousseau’s conception of “the General Will” (la volonté générale).

The Supreme Court of Canada in Ottawa in a file photo. The Canadian Press/Sean Kilpatrick

It was an idea that became Trudeau’s personal political and moral mantra. In one of his last publications, “Pierre Trudeau Speaks Out on Meech Lake” (1990), he used the phrase volonté générale repeatedly, and inaccurately. He urged Canadians “to create a national will … une volonté générale, as Rousseau had called it.” But he didn’t understand that a “National Will”—a simple idea born with modern liberal democracy—is something quite different from Rousseau’s notion of a “General Will” which is at the theoretical root of all totalitarianism. It was the latter Trudeau wanted to put in place in Canada, and with his Charter, arguably did.

What is the difference? A National Will of the people is a headcount of the majority that emerges bottom-up, so to speak, after the heat of debate, and is accepted by winners and losers alike with exceptions, compromises, and disagreements tolerated. A National, or majority, Will may be as low as 50 percent plus one vote, but there is agreement in advance that the losers in such a vote accept the will of the majority. That’s what happened in 1995 during the so-called Quebec Referendum on separation. The No side won by a slim margin, and the Yes side went home without starting a civil war. Practical British tradition at work.

A General Will is different. It’s a wholly abstract, totalizing concept created from the belief that for any problem concerning all the people, there must be—rationally speaking, can only be—one best solution, one General Will for the Common Good. Therefore the General Will is always correct and for the good of all, and once discerned and decided it requires total rule issued as a command from the top by an official Rousseau called the Supreme Legislator (in our case, the Supreme Court). So logically compelling was this idea that in his widely influential “Social Contract”—the Bible of French Revolutionists—Rousseau advocated the death penalty for all who opposed the General Will. It is a notion utterly alien to the British way of life and inherited political history, and in the hands of German and Russian totalitarians of the 20th century it nearly ended Western civilization. Despite these historical facts, Trudeau flirted his entire political life with how to create a single General Will in a Confederation such as Canada, a union structured precisely by our Founders to block the very idea of total rule from the centre. They wanted to block social engineers like Trudeau.

But Trudeau pummelled our Founders. By means of his Charter, Canada has been changed, uprooted, altered beyond recognition from its noble beginnings in British liberty. The English under General Wolfe won the Battle of the Plains of Abraham against the French General Montcalm in 1759. But in what must be considered “The Revenge of Montcalm,” the French have won the ideological and juridical war for the Canadian mind and soul.

That is the real significance of our Charter.

Editor’s note: This article was updated on Jan. 6 to add more details about former prime minister Pierre Trudeau’s initial discussions of a Bill of Rights in the early 1980s.

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