Charter flawed, but needed or Still a balancing act between majority rule, personal freedom

By Coyne & Mendes
Post Media
Apr 17, 2012

 Andrew Coyne- Charter flawed, but needed

Whatever else they may disagree on, critics and admirers of the charter of rights are united in their belief in its centrality. Whether you share the conviction of one critic that the day the charter passed Canada “surrendered any claim to democratic selfgovernment,” or whether you subscribe to the late Chief Justice Brian Dickson’s reported assessment, that the charter transformed Canada from a system of “parliamentary supremacy” into one of “constitutional supremacy,” what is common to both is the suggestion of a fundamental break with the previous order.

That we have become a noticeably freer and fairer country in the 30 years since the charter became law I do not dispute. But the changes it has wrought have as much to do with the system of law of which it is a part as with any particular provision of the charter. Indeed, the most common complaints about the charter, that it has confined Parliament’s powers to make laws for the general good, while handing unelected judges the power to make law, are not only exaggerations: they could as well be said about the rule of law itself.

All laws, not just the charter, bind the legislatures that pass them, at least until they are changed. All laws, not just the charter, limit the discretion of governments. That is precisely their point. The purpose of law is not to restrain the citizens: governments can do that very well in its absence, as in any dictatorship. It is, rather, a restraint on government. We do not trust our leaders enough to permit them to rule by fiat. We make them put it in writing. We grant them this much power, and no more.

We insist their powers be defined in this way, not only to contain them within limits, but that we might better understand what they are — that they might be more predictable, more certain, more clear. We desire, at a minimum, that laws should mean the same thing from one day to the next, and be consistent with each other.

But for that we need an independent adjudicator. If the people who made the laws also had the power to interpret them — as kings have claimed, in ages past — the law would cease to perform its intended restraining role. Legislation would mean whatever was convenient in any given case. Only by dividing power between the legislative and judicial branches — one proposing, the other disposing — can we be protected, however imperfectly, from “arbitrary measures.”

All laws, then, not just the charter, involve the judiciary in “making law.” The minute you given anyone the power to interpret the law, that inevitably impinges upon the legislative power to some degree, no matter how scrupulous they may be about original intent. That is an implication of the rule of law, not the charter. (And not only written law: The common law that conservatives get all misty about is judge-made law in its purest form, consisting as it does entirely of jurisprudence.)

To be sure, the charter differs from ordinary laws in some respects. It is explicit in stating its supremacy over other laws, even those that come after; accordingly, it is harder to change than they are. But even these are hardly new. The popular theory that Canada had no “written constitution” before 1982 would seem to have trouble explaining the existence of the British North America Act, which I distinctly recall being a document of some kind. As, for that matter, was the Bill of Rights 1688, the Act of Union and the rest of the English constitution back to Magna Carta.

Parliamentary supremacy was never the principle by which Canada was governed, in other words, nor was judicial review the invention of the charter. Before 1982, the courts were regularly called upon to decide whether one level of government had intruded upon another’s powers and prerogatives, and to toss out the offending legislation as ultra vires the Constitution. All the charter did was grant the people the same protection. Henceforth, governments had to be as considerate of their citizens’ rights as they were of each other’s.

You can call that many things, but the one thing you can’t call it is anti-democratic. Because — I’m going to let you in on a secret here — the charter was itself the creation of a democratically elected Parliament. More than a statement of abstract principle, the charter is a list of solemn promises on Parliament’s part: about how it intended to act in future, about how its past acts were to be judged. It wasn’t the courts that imposed these obligations upon it. Parliament itself assumed them, presumably in good faith. All the courts are doing is holding it to its word.

I do not mean to suggest that we live in the best of all possible worlds. The charter is a vastly flawed document. It omits the right to own property, a right protected in most other nations’ constitutions, while its prohibition of legal discrimination is instantly eviscerated by a rider allowing for just that, provided it is for the right reasons — one of half a dozen such exceptions and escape hatches, most notoriously the notwithstanding clause.


Errol Mendes- Still a balancing act between majority rule, personal freedom

Can a single constitutional document change the evolution of a society? I would argue that happened when the Canadian Charter of Rights and Freedoms was signed on April 17, 1982, by the Queen on Parliament Hill. On April 17, 2012, we should all be celebrating the 30th anniversary of this historic document.

The architect of the Charter, Pierre Trudeau and his party, which included 72 of the 75 MPS from Quebec, hoped that the Charter would produce a common citizenship that would unite French and English Canadians together with the many communities that make up the Canadian multicultural mosaic. Trudeau had also hoped that Canada would be brought into the mainstream of nations that had entrenched fundamental rights and freedoms to prevent the unbridled power of democratic majorities, as he had witnessed in Quebec under the regime of premier Maurice Duplessis.

However, the final version of the Charter was also the product of the desire of the political mosaic of women’s groups, aboriginal groups, ethnocultural groups, linguistic minorities and other equality-seeking groups demanding to see their own identities and rights recognized.

The Charter itself was a unique reconciliation of the principle of majority rule and the protection of the fundamental rights and freedoms of all its citizens. This was achieved by the first section of the Charter which stated that rights can be subject to reasonable limits that can be demonstrably justified in a free and democratic society. Second, the “notwithstanding clause” of the Charter allows legislatures to override rights in extreme situations and there has rightly been great political restraint in the use of this safety valve.

This reconciliation of the supremacy of Parliament with the fundamental rights of Canadians is at the core of the transformation of the country and its people.

Thirty years on, the reconciliation has seen good and bad times, but the transformation continues more quietly than before. The Charter is viewed as one of the most critical aspects of Canadian democracy in several reputable opinion polls. This is the case even in Quebec, where the hard core separatists still push the myth that Quebecers never agreed to it. While Canadians may not know the details of the Charter, they know that it stands as a bulwark against the tyranny of the majority.

The key role here is performed by the Supreme Court of Canada, which has been guided by the ancient values of proportionality and contextual justice. The first post-charter Supreme Court, led by chief justice Brian Dickson, rejected timid interpretations of the Charter. It upheld the hate propaganda law to ensure the equal citizenship of those minorities in our multicultural society. The Court also extended the protection of the Charter to refugee claimants and struck down the law on abortion. It also ruled that the collective linguistic rights of Quebecers under Bill 101 could not totally eliminate individual freedom of expression. Outside the strict limits of the Charter, the court also recognized and strengthened existing understanding of aboriginal rights.

The Supreme Courts that followed had to deal with allegations of improper judicial activism from those who failed to understand the purpose of an entrenched Charter and insisted that majority values and morals would trump rights. There followed criticism of the Court’s inclusion of sexual orientation and same-sex marriage in the Charter’s equality guarantee, along with upholding the fundamental rights of the accused in the criminal justice process and the rights of some prisoners to vote.

This unjustified criticism may have led to excessive judicial deference by the top court, in turn leading to criticism of it by progressive voices. Much lambasted have been the decisions to allow a government to annul retroactively millions in pay equity to female workers, the refusal to consider social and economic rights as part of the Charter, limiting some aspects of rights sought by trade unions and more recently starting to limit the scope of exemption and rights sought by religious groups.

Accompanying this deference is a paradoxical inconsistency in the general acceptance by the courts that it is not the role of the courts to second guess legislatures regarding economic, social and national security policies. On one hand, the Supreme Court seems to accept that Parliament can pass rather draconian national security laws that, with limited protections, can allow for harsh measures and closed hearings against terrorist suspects. However, the Court, by a slim majority, has also struck down a Quebec law that prohibited access to private medical insurance for publicly available health care. This ruling may well usher in a two-tier health system in Canada.

More recently, the Court in a very measured way has also ordered the government to provide an exemption for the harm reduction drug treatment work of the health clinic Insite in Vancouver.

This inconsistency may well be the nature of judicial review of the actions of government in the next 30 years. While on a socio-political level, the Charter has accomplished Trudeau’s vision of a Pan-canadian commitment to the reconciliation of rule by the majority with the protection of fundamental rights and freedoms, the balance between the two will be severely tested if there continues to be a majority government that does not seem to share the enthusiasm for the Charter.

This is most evident by the fact that the Harper government chose not to have any official commemoration of the 30th anniversary. While many parts of society may demand that the Charter protect individuals, groups and minorities who are most vulnerable to being used in wedge politics — such as the poor, refugees, sexual minorities, unions and aboriginal peoples — majority governments may try to frame their demands as undermining social and economic progress of the country.

It will be up to the wisdom of the moderate majority in the country to decide who wins in the pitched battle between wedge politics and protecting rights and freedoms. In the face of such challenges, those who fought to have the Charter become part of the fabric of Canadian society must fight to ensure the original vision does not weaken, because it speaks to the nobility of the Canadian spirit and of all Canadians.

Errol P. Mendes is editor in chief of the National Journal of Constitutional Law and a professor at the Faculty of Law, University of Ottawa. He is also the co-editor of the leading bilingual landmark text on the Charter titled The Canadia