This year as the Charter of Rights and Freedoms celebrates its 25th anniversary, Canadians can be forgiven if they hold their applause. That is because a document that clearly enshrines so many rights has had such a mixed record of actually defending them. Indeed, since the ratification of the Charter in 1982, some of our most fundamental freedoms have been eroded by the misapplication of the document. Under freedom’s banner, freedoms have been curtailed. Many of the problems with the Charter are not the result of irresponsible interpretations, but rather, the structure of the Charter itself.
Contrary to the common perception, the influence of the Charter does not flow from any new legal constraints it places upon Parliament. In fact, it shifts power from politicians to judges. And paradoxically, the opposite is true as well: it is the weakness of the Charter that gives it so much strength. The Charter was designed so that it would be subject to the notwithstanding clause – infamous by reputation, yet obsolete in effect – but also to the “reasonable limits” as outlined in Section 1. The Charter enshrines rights, but it enshrines them weakly – so weakly, in fact, that when it seems Parliament might legitimately invoke the sections of the Charter that limit its power, a crisis ensues. When such situations arise, shrill advocates (and lazy journalists) argue that by limiting any part of the Charter, the fragile structure on which the protection of human rights in Canada rests might collapse, ushering in a totalitarian twilight of unchecked parliamentary supremacy.
This is laughable. Because the notwithstanding clause has languished in disuse for so long, judicial advocates can pretend that its unprecedented – yet proper – use would jeopardize all the rights the Charter protects. And it is precisely the fear of these limitations that disenfranchises voters and emboldens judges, giving them carte blanche to tread into the domain of policy – the very power that would alarm them if it was in the hands of our elected representatives. The supposed weakness of the Charter has paralyzed the legislature and empowered the judiciary, so that the most outlandish decisions are yoked together with our most fundamental freedoms.
Defenders of the Charter will remind us that even in advanced societies, the rights of disadvantaged or silent minorities are not as zealously defended as the rights of a majority. Doubtless, this is true. The horrific and continuing practice of abortion is a daily reminder of this fact; indeed, the single greatest failure of the Charter has been its inability to defend the unborn, the most marginalized minority of all. Thus, in practice, the much-vaunted Charter has not bestowed rights onto previously disadvantaged minorities, but instead, has served as a battering ram for fashionable causes funded – until quite recently – with federal money through the Court Challenges Program.
Those who think the Charter is the only thing protecting minorities in Canada do not think very highly of its people, its traditions or the rule of law. And, while in all societies there exists the perennial danger that a majority will unjustly oppress a minority, it is the many who are being menaced by a select few. Indeed, the Charter is not a “majoritarian document” – it protects minorities. But the Charter provides no protection from the influential and elite minority that interprets the document; in fact, the Charter creates precisely this danger.
The contradictory guarantees of the Charter do not simply invite judicial activism, they require it. Thus, the rights and freedoms the Charter enumerates are not guaranteed in any permanent way. What is guaranteed is that judges will balance – that is, limit – rights as they deem appropriate. Instead of being protected by an impartial and independent judiciary, the rights of Canadians are now arbitrated by unelected judges whose decisions are only reversible by other judges. Thus, the Charter does not entrench rights, but the collective interpretations (and therefore prejudices) of the judicial establishment, which is no less prey to the ephemeral pressures of public opinion than the people’s representatives, whose power they have usurped.
What is to be done? The structure of the Charter invites these problems, but fortunately, it contains the solution to these problems as well. The Charter is an embodiment of the laws and traditions of Canada, with their roots in Canadian history and English common law. To this, it adds a decidedly Christian interest in victims and the oppressed – a secular version of the preferential option for the poor.
But, in the hands of an acquiescent executive, a pusillanimous Parliament and an overweening judiciary, the document has become a vehicle for radical social change, a weapon against the very history it pretends to embody. What is needed, then, is a renewed awareness that human rights are not a concession from the state – much less the decree of a judge – but rather, a gift from God, whose supremacy is invoked in the preamble of the Charter.
If the Charter is, as Justice Lamer put it, a “living tree,” Canadians have a right to ask what kind of fruit the Charter has yielded. The owner of the vineyard in St. Luke’s Gospel has a very clear idea of what ought to be done with a tree that bears no good fruit: “Cut it down. Why does it even use up the ground?” But, like the steward of the vineyard, we are hopeful that, given time, the Charter will indeed bear the kind of fruit Canadians can celebrate and respect: “Let it alone, sir, for this year, too” (Lk. 13:7-8).
Until then, Parliament should not neglect its responsibility to prune the overgrown influence of the document. After all, such action is prescribed by the Charter itself.