The Charter: An Emperor With No Clothes
April 17, 2007 · By Matthew Campbell
Many things could be said about the inclusion of the Charter of Rights and Freedoms on its 25th anniversary. Jean Chretien fawned over it earlier on CTV Newsnet, media pundits of all stripes paid it dear lipservice and various professionally ticked groups like EAGLE or Planned Parenthood wept over it’s legacy. Even many Tories, mostly of the libertarian or Red Tory ilk, have bought into the sham that this document is a model for the rest of the Earth and truly great. It is not. In fact, it is downright pitiful when compared to other pieces of fundamental rights legislation around the globe and throughout history. Today, I will simply outline a few key points that no Charter defender I’ve talked to has ever explained away effectively, and are issues that need to be addressed if we ever want to live in a truly free society again…
1)The Charter Is Undemocratic-Under this document, Parliament and the provincial Legislatures are essentially powerless in any attempt to represent their constituents if a court rules against a piece of legislation or a current law. What exactly makes a judge, and in particular the nine ones that walk around dressed like Santa Claus, so special, so important, so superior to the rest of us that they are capable of deciding the difference between right and wrong? Charterists freak out at the suggestion that judges should be accountable to the public, implying that the general Canadian public is either too stupid to know this fundamental difference or too morally imperfect to be trusted with such a decision. Might I point out as a rebuke that every Canadian justice as a)human and, in most cases, b)trained as a lawyer! Now who would you rather trust to know right and wrong: a farmer or a lawyer?
On top of this, the Charter is supposed to contain fundamental rights, as in they’re so important and predominant that people should naturally cherish their place in society that we all should be capable of defending them. Ah, but what about Nazi Germany, or “1984″? Well, maybe that tells you more about human nature’s dark side than it’s virtues…
2)The Charter Is The Protector of NOTHING-I have made the hypothetical argument for a while that under our current legal framework, the Supreme Court could rule through section 29 of the Charter (which deals with separate schools in the BNA Act) that employers have to pay a “living wage†to their employees. There is nothing in that section dealing with wages, but we’ve given our courts completely free reign to rule on anything and in any way that they please. Liberals call this a “living document†scheme; I prefer to call it tyranny. After all, what the courts granteth in the department of rights, the courts can taketh away when it suits their socially re-engineering minds!
3)The Charter Is Ignorant of Legal History-In comparisons to other major rights documents, not only is our Charter weak, but it is also arrogant. The U.S. founding fathers admitted in the 18th century that their Bill of Rights was monumental, but they also conceded that it would only benefit a just and moral people. The French were a little bolder, but even they said that their legal advances after the French Revolution had to be constantly defended. Trudeaunian Canada? We’re so delusional that we believe that this document can cure all of society’s ills and keep those evil violators of human rights at bay!
4)The Charter Is Illegitimate-So Trudeau convinced nine other men in suits to support this document’s insertion into the Constitution. This might have flown back in the nineteenth century, when most of the world’s foundational democracies were in their infancy, but by the 1980s, wouldn’t it have been more civilized and enlightened to let the people themselves decide the values they wanted their country defined by?
5)The Charter Is Incomplete-Finally, it’s important to note that the Charter is supposed to give to society. That is only one side of the coin though, since society also expects certain tenants under the social contract model. What we greatly lack today is a Charter of Responsibilities that included, among other things, a responsibility to be loyal to the nation of Canada before all other nations, actively support and participate in our democratic system and to be respectful of this country’s heritage and history, which incidentally made it such a great place to live in in the first place!
the people, and be derived from human rights, not from God or any sovereign authority, elected or not.Blogger Stand Your Ground, who cares about the rights of ALL Canadians, including Unborns, offers a sharp critique of the Charter and points to the posting of a fellow blogger at The Politic.com whose commentary is equally scathing. Stand Your Ground notes the obvious, Finally, it was the same charter that stripped the unborn Canadians of their right to life. Some 250,000 Canadians live with none of
From: ThePolitic.com http://www.thepolitic.com/arch.....o-clothes/ The Charter: An Emperor With No Clothes Written By: Matthew Posted: April 17th, 2007 Many things could be said about the inclusion of the Charter of Rights and Freedoms on its 25th anniversary. Jean Chretien fawned over it earlier on CTV Newsnet,
The “United Kingdomâ€Â, referred to in the present draft of the “Canada Act, 1982, including the Constitution Act, 1982″, refers to the “United Kingdom of Great Britain and Northern Irelandâ€Â, not the “United Kingdom of Great Britain and Irelandâ€Â.
According to the British North America Act, 1867, the provinces of Canada, Nova Scotia and New Brunswick expressed their desire to be federally united into one Dominion under the Crown of the “United Kingdom of Great Britain and Irelandâ€Â, not the Crown of the “United Kingdom of Great Britain and Northern Irelandâ€Â.
Great post Matthew!
I think we are stuck with the Charter now, and the real challenge for our generation—should Canada remain a coherent body politic—is finding a better fit for the judiciary in our parliamentary system.
Matthew wrote: “This might have flown back in the nineteenth century, when most of the world’s foundational democracies were in their infancy, but by the 1980s, wouldn’t it have been more civilized and enlightened to let the people themselves decide the values they wanted their country defined by?”
No. History does not legitimate nor does it de-legitimate constitutions. By the standard you seem to propose (“let the people themselves decide”) I assume you’re talking of referenda. Is the US Constitution illegitimate?
This is good, sober assessment of some of the shortcomings of the charter of rights. I point out some more shortcomings here. I generally support the charter, so count me as a “Libertarian Tory,” but at least I am willing to admit that it is far from perfect.
I agree with a lot of the sentiment expressed in this post, but I don’t think the Charter is a fundamentally bad thing.
Certainly, the Charter has holes that have allowed some liberal interpretation to say the least.
As a Libertarian, I must confess that I take much an opposite view to you in terms of democratic powers.
I would in fact argue that by putting infinite power in the democratic process, you introduce another problem which is referred to in libertarian philosophy as “tyranny of the majority”.
For example: If 99% of people vote in politicians promising to kill the other 1% of the population, does this constitute a legitimate act on the basis of democratic mandate? In pure democracy, the answer would be: yes.
To that end, no true libertarian believes in “democracy” per se. But rather, a libertarian believes in “represenative democracy” with the fundamental rights structure as proscribed by law, starting and ending with the individual.
In theory, the moderator of this contract with the elected represenatives is the courts.
Elections and referrenda alone are not sufficient enough to protect against the tyranny of the majority.
Simply because a majority of people believe something is true or right, does not make it so. It wouldn’t be very hard to enumerate supporting points for this statement.
I think the real argument is something that you touched on. Should the judicial branch be elected?
That’s a very difficult question, and it opens itself up to the obvious problem that elected judges will simply interpret the law in the way the electors want them to interpret it.
This is not a simple debate. It’s a very contentious, and difficult one. It is one I’ve put a lot of effort into trying to figure out in my head, and I’ve ended up with more worry and questions than when I started.
I thought the last point you made was most telling – we have a charter of “rights” – telling us what we can expect the government to provide and protect, but we have no charter of “responsibilities” telling us what we must in turn provide to government in exchange for these rights. They are implicit, and easily forgotten.
Mike makes a good point too about the tyrrany of the majority. This is what checks and balances are all about. The judicial branch of government is supposed to serve as a check against the legislative, and vice versa. In the USA, there is the Executive as well, but in Canada we really don’t have an executive. Still, the legislative and judicial need to be able to check each other, and we don’t have that at all under the Charter.
While I think your entire entry is flawed, the most glaring flaw is your suggestion that we have a charter of repsonsibilities that would ensure that Canadians “be loyal to the nation of Canada before all other nations, actively support and participate in our democratic system and to be respectful of this country’s heritage and history, which incidentally made it such a great place to live in in the first place!”
A huge percentage of Canadians are loyal to Canada above all other nations. In fact, who isn’t?
Actively support and participate in our democratic system? Howso? Voting? Impromptu gratitude parties on Parliament hill? Dunno what you are trying to get at here.
Be respectful of this countries heritage and history? Once again, howso? More ‘Vimy Ridge’ celebrations? More monuments? More ‘I am Canadian’ beer commercials?
Unless you can answer these questions, it really seems like you are just looking for something to bitch about.
Tom – First, the U.S. Constitution was drafted in the 18th century, a tad before the period I mentioned and hence, legitimate for its time. You would think though that by today, with all the *social evolution* that we’ve apparently experienced, we’d at least see the value in letting the people themselves decide the principle law by which they want to be governed.
Throbbin – There were some young men of a certain religious inclination from Toronto that made the news last summer that come to mind, when it comes to questions of loyalty. You betray the fact that we have traitors around these parts by saying that a “huge percentage” of Canadians are loyal. Yes, but huge is not equal to all!
Also, democracy among the other core values and institution that this country enjoys and which are under attack are good values. I’m not looking to gripe about anything (except, perhaps The Charter) here, I’m just saying that our entire history is evidence that these institutions and values have made Canada the great place that it is, consistently and powerfully. Enshrining their protection then would just be prudent! It’s an idea who’s idea is coming too!