How the Charter of Rights Let Canada Down

Remember, ON PAPER, probably the 'freest' constitution ever written was the 1936 'Stalin Constitution' of the USSR.

From UnHerd

By Yuan Yi Zhu

The document has reduced our definition of freedom to box ticking

If Canada has a sacred cow, akin to the NHS in the UK, it is the Canadian Charter of Rights and Freedoms — a constitutional bill of rights added to our constitution in 1982. As a national symbol, it is more popular than the national flag, the national anthem, and even hockey. Many Canadians can barely imagine that other, more benighted, lands might also have put some fundamental rights down in writing.

This would normally be harmless enough. Canada is after all a young nation, and nations need symbols. But the Charter, though full of admirable sentiments, has also infantilised Canadian politics and public discourse. A vague document full of broad promises coupled with important qualifications (rights are subject to limits as “can be demonstrably justified in a free and democratic society”) and exceptions (judicial interpretations of rights may be subject to legislative override under s. 33, the notwithstanding clause), it has enabled generations of Canadian judges to act as supreme legislators by interpreting it in all sorts of creative ways, striking down disfavoured legislation at a whim.

Only a few months ago, for instance, a Canadian court ruled that it was unconstitutional to require prospective schoolteachers to pass a basic maths test — the Charter, you see, forbids this, because equality rights something-something. No policy of any importance is implemented without the courts, and usually the Supreme Court of Canada, chiming in, which suits politicians admirably because they can fob awkward issues to the judges in that way.

This is where the Canadian trucker protests come in. Earlier this week, the Trudeau government invoked the Emergencies Act to stop these protests, which have now lasted for almost two months. The Emergencies Act, which replaced the bluntly but honestly named War Measures Act in 1988, gives the power to the Governor-in-Council (in practice the Cabinet) to declare an emergency. Once an emergency is declared, the government can impose a host of drastic measures by executive fiat, subject to parliamentary review within seven days.

The measures the Canadian government have imposed make for uneasy reading, whatever your view on the trucker protests. They not only make it illegal to participate in or travel to the protests, but also to give money to any protester or to provide them with car insurance — while making it legal to freeze their bank accounts without a court order. In effect it makes it impossible for many of them to earn their livelihoods, or simply to live (Canada being such a large country, large parts of it are unliveable without an automobile, and driving legally requires car insurance). They also give the government the power to force tow truck drivers to provide their services to the government. Breach of these regulations carries a maximum of five years’ imprisonment.

The international reaction was distinctly queasy. Even outlets such as the New York Times, hardly the natural ally of protesters against Covid restrictions, saw those measures for what they were: a “temporary suspension of civil liberties”. But the Times quickly backed down after being bombarded with tweets by Canadian journalists and politicians angry with that description.

Bob Rae, Canada’s ambassador to the United Nations who was once one of Canada’s leading politicians, tweeted out the following representative gem:

The Preamble to the Emergencies Act states clearly that it is subject to the Charter of Rights. Contrary to what the NY Times has stated, civil liberties have not been suspended in Canada. Get a grip.

- BOB RAE, TWITTER

But by any definition, freezing someone’s assets without due process is a violation of civil liberties. Likewise depriving people of their livelihoods or taking away people’s right to refuse to perform work for the government. You may think that these violations are justified, but that doesn’t change the fact that they are violations.

But Canadians’ grasp of the constitutional facts have been so atrophied by decades of unthinking Charter worship that many are no longer able to think about rights independently of it, to see that rights do not begin and end with a piece of paper with an impressive title. Just because the emergency decrees pay lip service to the Charter doesn’t make them any less rights-violating.

Ultimately, the best protection for rights is not any particular piece of legislation, but a robust societal consensus in their favour, as well as active thinking and discussion about their parameters. Through the Charter, Canadians have gained a constitutional guarantee for certain rights formulated in abstract terms, but may have lost much of the cultural wherewithal necessary to sustain a broader culture of rights. Would-be constitutional tinkerers in the United Kingdom and elsewhere might want to take note.