A recent perceptive article in the Financial Post by Bruce Pardy, Professor of Law at Queen’s University, entitled, “During COVID, the charter has been useless” has been the occasion for further thought and reflection.
In these days of increasing restrictions on our basic rights and freedoms (well attested to by Professor Pardy), creeping collectivism, government tyranny and apparent judicial acquiescence, it is fair to ask: what happened to the Charter of Rights and Freedoms? Wasn’t the Charter supposed to protect our individual liberties from government overreach?
The Evolution of the Charter
Bills or Charters of Rights have along history in the evolution of Western democracies and have primarily been concerned with limiting the exercise of government power whether in the Executive, Legislative or Judicial branches.
In the Canadian context, thanks to our British Common Law heritage, we can look to Magna Carta of 1215 as being the first serious attempt at articulating and protecting the rights and freedoms of the subject over and against the power and prerogative of the Crown. The English Bill of Rights of 1689, which is part of Canadian law, is the source and guarantee of Parliamentary Privilege, i.e. “Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament”. The Canadian Bill of Rights of 1960, which only applied to the federal government, was an important step in Canada’s evolution towards enshrining basic fundamental rights into our Constitutional ethos.
In the aftermath of Nazi war atrocities, other horrors of World War II, and the subsequent founding of the United Nations, the desire to afford protection for basic human rights has been found in the UN’s Universal Declaration of Human Rights of 1948 as well as numerous UN Conventions since then. Similarly, the Nuremburg Code of 1947 and the Declaration of Helsinki of 1964 attempted to protect the rights of human beings involved in human research as well as provide an ethical basis for such research.
Prior to the arrival of the Canadian Charter of Rights and Freedoms, most Canadians looked to the American Bill of Rights as being the most familiar example of a document that protected the individual from the power of the state. Of course, those who “created” the Canadian Charter of Rights and Freedoms were none too keen on following the American example and instead based the Charter on the Universal Declaration of Human Rights.
The Experience of Canada’s Charter
Signed into law in 1982, the Charter of Rights and Freedoms has been around now for some 40 years, and it is appropriate to look at the Charter and wonder just how effective it has been.
Unfortunately, it has not been a resounding success in limiting the state’s power or protecting individual rights. Some Charter cases show promise in protecting individual rights in the criminal context, for example: no absolute liability and mandatory imprisonment (liberty); more stringent rules regarding wiretaps (privacy); reverse onus (presumption of innocence); full disclosure of evidence (fair trial); and a prohibition of mandatory minimum sentences (guarantee against cruel and unusual punishment). Other Charter cases, however, do nothing to protect individuals from themselves, society from the consequences of anti-social behaviour or protect individuals in the exercise of their “constitutionally guaranteed” fundamental rights and freedoms.
Whenever a “social issue” such as freedom of religion, traditional marriage, drug use, physician assisted suicide, abortion, pornography, or prostitution are litigated before the courts, the courts invariably use the Charter to further a progressive, anti-Judeo-Christian world view. One is hard pressed to find any provincial appellate court, let alone a Supreme Court of Canada decision under the Charter that has upheld Judeo-Christian values in legislation duly enacted by the legislature.
The sad reality is that after 40 years, the Charter has increasingly become nothing more than a tool in the hands of the judiciary to impose, and support, the progressive agenda that is destroying the social and legal fabric of this country—a progressive agenda that could never openly make it into Parliament. Indeed, as Professor Pardy notes, “[t]he Supreme Court has read the charter [sic] over its 40-year life largely through a progressive lens, slowly transforming what was intended to be a roster of autonomy rights into a mandate for collective values, group rights and the priorities of the administrative state.”
Understanding the Charter’s Failure
So, what do we make of all this? Looking back on all the words written in Magna Carta down to our own Charter of Rights and Freedoms, one realizes that these documents are not enough, by themselves, to guarantee respect for our rights and freedoms. Something more is required. Our Supreme Court is quite enamoured with the idea of the constitution as a “living tree” capable of growth and adaptation to changing times. The problem with such an analogy is two-fold: first, it ignores the fact that fundamental rights and freedoms are OBJECTIVE and FUNDAMENTAL, they do not change with changing social circumstances; and two, the court in “growing” this living constitution has totally failed to account for the soil in which that “living tree” is planted. It is the soil of the Judeo-Christian ethos that makes the limitation of government power conceivable and the subsequent respect for rights and freedoms possible. By constantly ignoring that ethos, is it any wonder that the only use the Charter has had is as a tool to further the progressive agenda?