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Wednesday, April 28, 2004

On the Charter

Joey deVilla posed a question in the comments to Paul's post "The tragedy of Torontonian compassion" which I'd like to raise here on the main page, 'cause I think it's worth discussing. The question was this: "What would you put in place of the Charter?"

I think there are two mutually exclusive answers to that question. (This is necessarily a brief overview, as either of these answers deserves book-length treatment.)

First, if we are to replace the Charter, it's proper replacement would be... nothing. I'm not sure that it can be shown empirically that we are "more free" or "more secure" (in the sense of being secure from the state monopoly on violence) post-Charter than we were pre-Charter; similarly, I'm not sure that Britain, a country without a written bill of rights, can properly be said to be "less free" or "less secure". I would also be willing to make the argument that any gains in individual rights (e.g., in the context of freedom from unreasonable search and seizure) have been offset by losses in collective security, as the Charter has introduced a situation where individual rights of criminals (note, not "accused", but convicted criminals) almost inevitably trump the right of the state to impose sanction on them and ensure public safety.

But the tragedy of the Charter is not properly measured by looking at crime statistics. Instead, we need to look at the fundamental shift it wrought in our legal and constitutional framework, and the effective disenfranchisement of the citizenry. The Charter is an attempt (well, more than an attempt, it's been successful) to inject a modification of a republican institution into a Westminster parliamentary democracy. It doesn't work. The premise of republican governments is a system of checks and balances (most properly embodied in the US form of government), whereas Westminster parliaments rely on the notion of "responsible government". In both cases, the judiciary is meant to act as a bulwark against potential excesses of the executive and legislative branches. But in both cases, it is recognized that the sovereignty of the citizenry is paramount. The Charter attempts to eviscerate that, and it even does it badly.

Giving the judiciary the power to overturn acts of parliament is not a bad thing in and of itself. But it needs to be done in such a way that a new unaccountable caste is not created; in the republican form of government, this was accomplished by giving the legislature oversight power on the executive's ability to appoint Supreme Court justices. The Westminster style of government recognized the supremacy of Parliament was inherent in the system, but centuries of common law and custom had caused Parliament to (grudgingly) respect the power of the courts to overturn laws which reached too far. In both cases, though, ultimate power rested with the people, as it should.

The Charter did two things: one, it sought to give courts the power to overturn parliament's laws, but without making any concomitant changes in the way the judiciary is elected; two, it includes a built in "escape clause" which allows parliament to override the Charter. So it's a document premised on a lie. It purports to guarantee you rights (subject to reasonable limitations), but even that can be overriden by a simple majority vote (and it has been: in the 1980s the federalist [sic] government of Robert Bourassa stripped freedom of speech, that most fundamental democratic right, from English speakers in the province of Quebec). So two massive (and conflicting) problems infect the document: it has transferred power to the judiciary with absolutely no oversight on the exercise of that power; and it allows the rights it purports to guarantee to be snatched away.

This is a major cultural and political shift. We are beginning to see glimmers of the first problems: the opening of the Canadian political system to policy-by-litigation, whereby special interest groups (be they of the left or right) who are otherwise unable to obtain electoral (and hence legislative) support for their pet causes can try to impose change through the courts (which, again, I stress, are unaccountable to anyone). We witnessed this very recently with the attempts to secure a "right to welfare", which was shot down by a narrow marjority of the court. We have also seen courts in BC decide, apropos of nothing, that the government wasn't spending enough on special education programs for autistic children and order spending increases; a decision like this would have been, literally, revolutionary pre-Charter. Today, most people are likely not to have heard of it.

So, on this argument, scrap it. We're no more free than we used to be, and we've been made the subjects of an unaccountable, unelected elite. Unacceptable in a democratic society. (To be clear, the provenance of this argument is not limited to those of us on the right-hand side of the aisle; Michael Mandel, a rather unwavering leftist, has published more than a few pieces on this point, including this book.)

Second, the Charter doesn't really need to be dumped. It has it's good points. Instead of relying on vague common law assurances of rights, we can now point to a binding document which enshrines them. But two things should be done if we are to keep it: one, invest property rights in there; two, give Parliament binding oversight on appointments to the Supreme Court. Doctrinally, the latter is the only way to reconcile the existence of the Charter with centuries of parliamentary democracy. And it's not like it would matter all that much: the governing party would still have a majority on the committee, so if the Prime Minister really wanted to get a candidate through, he or she could, even in the face of vociferous opposition from the, uh, Opposition. But issues of governance are properly in the bailiwick of the people; the courts have been granted governance power by the Charter, so now they need to be subject, in a meaningful way, to that oversight.

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Great stuff, Bob.

But am I the only one who doubts that the average Canadian gives a horse's patootie about any of this? I sometimes think that with the exception of about 1000 individuals, the population of Canada is solely concerned with receiving a steady supply of affordable beer, lottery tickets, hockey games, TimBits, "free" health "care" and tax "refunds."


Posted by: Kathy Shaidle | 2004-04-28 10:03:36 AM

How does the Charter enter into this in the first place? The majority of homeless people I've met suffer from severe mental illness. Treating the illness itself would be a lot more effective than giving them booze, ciggies, or a bus ticket to another city.

I'd be curious to see how much it costs to treat the homeless for their mental illness compared to the costs of dealing with homelessness.

Posted by: Sean | 2004-04-28 10:40:46 AM

Bravo. The Charter is one of the sacred cows of Canadian society, but its consequences on our lives have been on balance negative; the consequences for our parliamentary system have been utterly destructive.

People treat the Charter as if Trudeau and Chrétien went up Mount Sinai and came back down bearing stone tablets with words engraved by the finger of God. Does Québec have the power to secede? Is it legal for two men to marry each other? Should Canadians be able to smoke marijuana freely? Let us consult the sacred text to discern its meaning.

No-one even considers asking the all-too-human drafters what they meant to say. And if they were asked, they would probably admit that they had never even imagined some of the controversies in which the Charter has been invoked.

I can't imagine that we'll be able to repeal the Charter in our lifetimes. The best we can do is appoint judges who will defer to the decisions of Parliament.

Posted by: Marc | 2004-04-28 12:06:31 PM

I'm fascinated that you would rather defer to whomever was in power in Parliament at the time than a written document such as the Charter that might at least guarantee some basic level of rights for all Canadians. I can't imagine living in the United States without the Constitution to defer to when lawmakers and/or lower court judges make serious errors in judgement when deciding what's best for my country. Without our Constitution I can't imagine what my own country would resemble. Perhaps slavery would still be practiced and women relegated to the kitchen without a say over who they wish to govern them or what they're allowed to do with their own bodies. Also, we don't have the luxury of asking the authors what they meant. We have to rely on (hopefully) wise individuals on the Supreme Court to interpret the document, without which I might add, would not have allowed two women to ascend to their position on the Court. Still better than the alternative. Then again I'm just a wacky liberal...

Posted by: Matt | 2004-04-28 12:26:29 PM


Interesting examples you picked. Of course for much of American history, "slavery [was] practiced and women [were] relegated to the kitchen without a say over who they wish to govern them or what they're allowed to do with their own bodies", regardless of what the American constitution says about those matters.

Slavery was ended and women became equal before the law because society changed, not because of what Thomas Jefferson wrote. Without a Bill of Rights, the changed opinions of society would have been implemented by legislatures, not the courts, but they would have been implemented nonetheless.

As Judge Learned Hand observed, "Liberty lies in the hearts of men and women; when it dies there, no Constitution, no court, can even do much to help it."

Posted by: Marc | 2004-04-28 12:50:27 PM

"I'm fascinated that you would rather defer to whomever was in power in Parliament at the time than a written document"

Sorry, I think that's unnecessarily reductionist. I wouldn't, in any event, counsel that we rely on the legislature to the exclusion of the judiciary; rather we shouldn't privilege the judiciary over and above parliament, especially when we give the executive the sole and unreviewable ability to appoint the relevant judiciary. Of course, I've just exposed another fault line where the stresses of trying to graft a republican institution (a bill of rights) into a parliamentary system (with the unchecked power of the executive) come into play. In the US, it's possible for the legislature and the executive to be of different parties, so it's possible for the Senate, in exercising its review power, to check the executive. In Canada, there is no potential divorce between the executive and the legislature: the executive *is* the party which controls the legislature. So you've got the executive appointing the judges (without any possibility of review by the legislature) who will determine whether the laws passed by the executive are "constitutional". It doesn't add up.

But to bring it back to something a bit more easily grasped: the Charter was only introduced in 1982. Were there massive human rights violations which occurred prior to 1982 which have suddenly ceased? Nope. So there was a revolution in our political superstructure which "addressed" problems which didn't exist. (And before anyone gets all excited about WWII internments, those would be quite feasible even with the Charter, given the notwithstanding clause.)

Posted by: Bob Tarantino | 2004-04-28 1:01:35 PM

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