Today is the 30th anniversary of our Canadian Charter of Rights and Freedoms. On April 17, 1982, Queen Elizabeth signed our new Canadian Constitution, of which the Charter is part.
It should come as no surprise that the government of Prime Minister Stephen Harper — normally so obsessed with history, at least when it involves feats of arms — is ignoring this turning point in Canadian history.
Part of this, naturally, is mere partisan politics. The Constitution would not have “come home,” and the Charter would not be enshrined in law, had in not been for a Liberal prime minister, and one unpopular in Harper’s circle to boot: Pierre Elliott Trudeau.
More significantly, however, it would be fair to say that the far right in Canada, of which Harper is part, dislikes the Charter, and certain extremist elements of the right despise and abhor it. Is his concern about “constitutional divisions” sincere? Not very likely.
The Charter is enormously popular among ordinary Canadians in all provinces, including Quebec, however, because they understand immediately and intuitively that stating clearly what our rights are in a document that overrides all other laws is an effective way to protect citizens from the wealthy and the mighty who throughout history have always acted in their own class interests.
The Charter is an imperfect document, the product of a difficult compromise. But most of us know we are much better off with it than without it, and we are thankful to Trudeau for pressing forward determinedly on his constitutional project throughout 1981 and into 1982.
Critics of the Charter, like Harper and former Reform Party leader Preston Manning, usually base their critiques in the notion we somehow had more rights when Parliament was supreme and our rights were traditional but undefined. Because the Charter is popular they tend to couch their criticisms in the bloodless language of pedantry.
So, Harper said in the Globe and Mail on June 13, 2000, “I share many of the concerns of my colleagues and allies about biased ‘judicial activism’ and its extremes. … Serious flaws exist in the Charter of Rights and Freedoms.”
Asked Manning: “Do Canadians enjoy more protection of their freedom because of a constitutionally entrenched Charter than the British do without one? I don’t think it’s made a quantum difference in that regard.”
But ordinary Canadians understand that our fundamental rights as individuals are far better shielded by a document that defines them and states which rights are protected than by Parliamentary and Common Law traditions that, as Harper has proved on more than one occasion, can be simply brushed aside and ignored without political consequences.
That is why — notwithstanding the far right’s obvious preference for what the PM has called “the traditional approach of common law and parliamentary supremacy,” which is to say the tyranny of the majority when they can muster the votes and of the wealthy minority when they can’t — the Charter is here to stay.
We can be confident that much harsher things are said about the Charter by its enemies in the privacy of their in right-wing clubs than are normally made available for public consumption. (Conrad Black has dismissed the Charter as “a farce” and “a nuisance that has turned many of our under-qualified judges into feckless social tinkerers.” And the ignorant blatherskites of the prime minister’s separatist-owned media auxiliary despise the Charter literally to this day, risibly and ironically dismissing it as a mere sop to French Canadians like their boss.)
As a consequence, most enemies of the Charter have moved from assailing it directly to trying to use it to advance their own corporatist hobbyhorses and by attempting to subvert it through various stratagems.
So the likes of Harper and Wildrose Party campaign strategist Tom Flanagan have used the Charter to fight against such democratic reforms as legislation imposing contribution limits during election campaigns on the spurious grounds they abridge free speech and to argue restrictions on two-tier health care interfere with our freedom. Said Flanagan: “The ban on private health is an obvious abuse of an individual’s rights.”
Undermining the Charter through subversion takes the form of appointing judges who can be counted on to direct partisan judicial activism in a rightward direction, and campaigning to eliminate human rights commissions to make the defence of our rights more difficult and expensive, as is now being proposed by the Wildrose Party.
A pre-Wildrose conference in 2006 organized by leader Danielle Smith and Link Byfield, the party’s candidate in the Barrhead-Morinville-Westlock riding northwest of Edmonton, explored some of these themes and concluded, according to Byfield’s website, that “the courts should be restrained from inventing new laws under the Charter.”
By this, it is said here, he meant keeping the Charter from protecting individuals’ rights when they are in conflict with the corporate agenda.
Byfield is also the founder of the Citizens Centre for Freedom and Democracy, which stands, among other things, against expanding the influence of the Charter.
As quoted yesterday in this blog, Smith herself advises exploiting the weaknesses in the Charter by drafting laws that go as far as possible to abridge our rights through administrative rules without pulling the constitutional fire alarm. “Politicians are wily enough to find a way to violate Charter rights,” she explained in a column in the Calgary Herald on Jan. 14, 2006.
This is sadly true, and it is worthwhile remembering that many of the movers and shakers in the Wildrose Party as it creeps toward its goal of a reverse takeover of the Alberta Progressive Conservatives are friends neither of our Charter nor of our Charter rights.
Still, we are far better off with the Charter, which former New Democratic Saskatchewan premier Roy Romanow described as a document that “embodies a set of values and ideals and principles that resonate with the Canadian public.”
So we should give thanks for it today, whether or not the Harper government ignores the anniversary, and remember both how we got it and who tried to keep us from having it.
This post also appears on David Climenhaga’s blog, Alberta Diary.
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