A perceptive article in the Financial Post (November 3, 2021) by Bruce Pardy, Professor of Law at Queen’s University, entitled “During COVID, the Charter has been useless”, raises serious questions about the Charter.
In these days of increasing restrictions on our basic rights and freedoms (well attested to by Professor Pardy), creeping group think, 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 Experience of Canada’s Charter
Signed into law in 1982, the Charter of Rights and Freedoms has been around now for some 40 years, so it is appropriate to reappraise it to determine whether it has been effective.
Unfortunately, it has not been a resounding success in limiting the state’s power, or protecting individual rights. There were, a few Charter cases that showed promise in protecting individual rights in the criminal law, such as protection from mandatory imprisonment (liberty); wiretaps (privacy); reverse onus (presumption of innocence); disclosure of evidence (fair trial); and a prohibition of mandatory minimum sentences (guarantees against cruel and unusual punishment). Other Charter cases, however, have done nothing to protect individuals and society from the consequences of anti-social behaviour by others or protect individuals in the exercise of their supposedly constitutionally guaranteed fundamental rights and freedoms.
When social issues, such as freedom of religion, traditional marriage, drug injection sites, physician assisted suicide, abortion, pornography, and prostitution have been litigated before the courts, the courts invariably have used 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. The changes brought by the court would never have been passed by Parliament. Indeed, as Professor Pardy noted, “[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
Simply put, the Charter of Rights and Freedoms has not guaranteed our rights and freedoms. This is because the Supreme Court is quite in love with the idea that the Charter should be interpreted as a “living tree”, capable of growth and adaptation to changing times. The problem with this analogy is two-fold: first, it ignores the fact that rights and freedoms are OBJECTIVE and FUNDAMENTAL, and do not alter with changing social circumstances. Secondly, the court, in “growing” this living constitution, has totally ignored the soil in which that “living tree” is planted, which is the soil of the Judeo-Christian principles that makes both the limitation of government power conceivable and the subsequent respect for rights and freedoms possible. By repeatedly ignoring this, is it any wonder that the judges are using the Charter as a tool to further the progressive agenda?
After forty years of the Charter’s existence, it has shown itself to be useless in protecting the rights and freedoms of Canadians.