The media and Liberal Party partied like it was 1982 and wondered why not everyone wanted to join them. But as pro-lifers warned in the negotiations leading up to the Charter of Rights and Freedoms, it has been a flawed document, divisive and undemocratic. Worst of all, for all the trumpeting of its protection of individual rights, it does nothing to protect the most precious and important right – the right to life.

April 17 marked the 30th anniversary of the royal ascent of the Canadian Charter of Rights and Freedoms. Newspapers were full of laudatory articles and columns and the Liberal Party held a party (and fundraiser) celebrating the anniversary. But despite what editorialists and some politicians might say, the Charter is not only controversial, it is far from a moment in Canadian history worth celebrating.

Thirty years ago, after long negotiations with the provinces, prime minister Pierre Trudeau sat at a desk and looked at Queen Elizabeth II as she signed the new constitution and the Charter of Rights and Freedoms in an open air ceremony on Parliament Hill, repatriating the constitution to Canada (which is no longer controversial outside Quebec) and imposing on Canada a charter that ostensibly protected the rights of all citizens.

Media loves the Charter

On the anniversary, the Waterloo Region Record gushed “this Charter is bedrock on which a more fair and tolerant nation has risen” and “it deserves enthusiastic celebration, this week and always.” In one contribution to a series of columns in the National Post marking the anniversary, Adam Dodek of the Public Law Group at the University of Ottawa faculty of law, said the Charter is a beacon to other countries looking to create new constitutions; juxtaposing it with the U.S. Bill of Rights, “an 18th century document,” Canada’s Charter “represents a modern late 20th-century constitutional vision.”  Toronto Star columnist Haroon Siddiqui banged out four columns on the anniversary week praising the achievement of the Charter. The Globe and Mail praised the Charter in an editorial saying it protects the rights of the weak and the voiceless, highlighting recent decisions to overturn government regulations on so-called safe injection sites and prostitution. The normally sober-minded Calgary Herald concluded its editorial saying, “Although not a perfect document – an unattainable goal – the charter is a treasured document that other nations emulate.” The evening broadcasts of The Agenda on TVO, Power and Politics on CBC and Power Play on CTV had a number of segments looking back fondly on the Charter’s creation and legacy, with only the Sun News Network giving any real voice to critics of the Charter.

Liberals make Charter partisan

The federal Liberals held a party in downtown Toronto to congratulate themselves for “bringing the constitution home” three decades earlier and creating the Charter which, if you read between the lines of the speeches by interim leader Bob Rae and former prime minister Jean Chretien, brought liberty and human rights to Canada for the first time. Of course, before there was a Charter, Canada had a Bill of Rights that protected many freedoms. The difference now is that the Charter makes it easy for the courts to overturn federal and provincial laws that, in the opinion of a handful of unelected judges, violate the life, liberty and security of the person.

The Bill of Rights was a federal statute so its protections for freedom of speech and religion were not applicable to provincial law. The statute was also theoretically easier to amend through the political process than is the Charter. That is why the federal government’s press release stated: “This anniversary marks an important step in the development of Canada’s human rights policy. Building on Diefenbaker’s Canadian Bill of Rights of 1960, the Constitution Act of 1982 enshrined certain rights and freedoms that had historically been at the heart of Canadian society into a constitutional document known as the Charter of Rights and Freedoms.

“The Constitution Act of 1982 empowered our government to amend every part of Canada’s constitution, for the very first time.”

The whole extent to which the Harper government marked the anniversary was issuing the four-paragraph press release under the names of Justice Minister Rob Nicholson and Heritage Minister James Moore. The Liberals were outraged at the lack of official celebration. They said at a time when the government is spending millions marking the 200th anniversary of the War of 1812 and the Queen’s Diamond Jubilee, the Tories could have done something to note the 30th anniversary of the Charter. They attacked the Tories for playing partisan games.

Put aside the partisanship of attacking one’s partisan opponents for practicing partisanship – all sides are guilty of that, including the Liberals making the Charter a celebration of big-L Liberal values. The critique that at a time when Ottawa is lavishing taxpayer money to mark various milestones why not also celebrate the Charter may sound reasonable but doesn’t hold water because there are any number of counter-arguments: 200-year anniversaries are much more important than 30-year ones, the Charter is divisive, it may not be worth celebrating, and, particularly damning, the Liberals did not have an official celebration when they were in power to mark the 20th anniversary.

At the Grit fundraiser in Toronto, Jean Chretien, who served as Trudeau’s justice minister and co-chair of the negotiating team to get the provinces to agree to the Charter, condemned Prime Minister Stephen Harper for not standing up in the House of Commons on the anniversary to give a speech like he (Chretien) did a decade ago when he was prime minister. The problem was that Harper (perhaps conveniently) was in Chile on an international trade trip. But back in 2002, Ottawa had no official celebration – just Chretien’s 15-minute House speech and a photo-op afterwards.

Free pass for politicians

The Liberal Party might have a reason to celebrate the Charter: they got the social policies they wanted – overturning the therapeutic abortion committees, imposing Sunday shopping laws, bringing in same-sex ‘marriage’ and a host of other socially liberal changes – without suffering any blame for opening a controversial issue or being on the wrong side of one. Sometimes it was the lower courts and sometimes it was the Supreme Court, but the power the Charter gave to judges to over-rule the will of the people and their elected representatives has given cover to politicians to avoid debating controversial but important issues. The Charter is a free pass to cowardly politicians.

Roy Romanow, the former NDP premier of Saskatchewan who served as the province’s justice minister when the Charter was negotiated in 1981 and ‘82, was asked last month by CTV’s Don Martin if they knew at the time that the Charter would provide a “shield” to politicians when it came to “contentious issues.” Romanow responded: “We did.” He explained, “the entrenched Charter … which carries the weight as the constitution and might mean the transference of the decision-making process” from the people to judges, was something they were very much aware of and thought Canadians wanted. Of course, Canadians were never really asked; the constitution was a deal worked out by the federal government and the provincial premiers and justice ministers. Trudeau and Chretien resisted calls for a national referendum to approve the proposed constitution and Charter.

Campaign Life warned about Charter in 1981

In 1981, Campaign Life warned that the Charter would be terrible for both the unborn and democracy. In a brief submitted to the Constitution Committee of Parliament in 1981, Campaign Life warned that if enacted the Charter would “gravely weaken the pro-life position in Canada” by not specifically acknowledging the rights of the unborn and by “transfer(ing) power from Parliament which is now supreme, to the Supreme Court of Canada, which would henceforth have the final say on any legislation.”

On Jan. 8 of that year, CL president Kathleen Toth, legal counsel Gwen Landolt and two psychiatrists, Dr. Edward Rzadki and Dr. Michael Barry, presented the brief to the committee making the same points. They reiterated the concerns contained in the brief and warned the Charter would lead to unencumbered abortion-on-demand and be used to build free-standing abortion facilities.

Other than an NDP boycott of their presentation, Toth reported at that time having a “warm reception” from committee members although ultimately Campaign Life was ignored.

Worst than being ignored, however, Campaign Life was criticized for fear-mongering. The pro-life movement at the time was united in its opposition to the Charter for failing to provide “specific language that the right of everyone from conception to natural death be protected.” When Campaign Life commissioned an independent lawyer to write an opinion on the effect of the Charter on pro-life issues, he endorsed Landolt’s brief; the Justice Department issued a letter denying both findings, saying: “the arguments advanced to show that the Charter will create an entitlement to abortion on demand have been clearly refuted in the opinion given by the Department of Justice.” Initially, Canada’s Catholic bishops opposed the Charter, but eventually Toronto Cardinal Emmett Carter endorsed the Charter at the last minute saying he had assurances from lawyers and Trudeau that it would not affect the unborn one way or another. When Larry Henderson passed away in 2006, the Globe and Mail reported that the former broadcaster and editor lost his job with the Catholic Register over his running of Campaign Life-sponsored anti-Charter ads in the paper.

Predictions came true

But Landolt’s predictions have all come true.

The CBC interviewed a number of legal and human rights experts for their anniversary coverage, inquiring about the Charter’s legacy. Two of the “six big changes the Charter has brought” were “women’s reproductive rights” and “recognition of the LGBT.”

The CBC reported that the Morgentaler decision (1988) struck down abortion’s ostensible restrictions (the rubber stamp therapeutic abortion committees) as unconstitutional without declaring a right to abortion. Still, as University of Calgary political scientist Rainier Knopff told the state broadcaster, in Morgentaler the Supreme Court “took a stand that is much more modest and moderate than what the Morgentaler decision is portrayed as, rhetorically.” Although the Court said Parliament could enact a law restricting abortion, parliamentarians have been loathe to address the issue, many of them (wrongly) claiming the Supreme Court ruled that women have a constitutional right to abortion. Landolt and Campaign Life were right: the courts took the issue out of the hands of legislators (both directly and indirectly) and the abortion license was broadened by the Court’s striking down the modest restrictions of the 1969 law. Since the Morgentaler decision, there was been a proliferation of free-standing abortion mills (Toronto alone has more than 30 locations that do abortions, including doctor’s offices).

The Charter vs. democracy

Grant Huscroft, a professor of constitutional law at the University of Waterloo, wrote in an online debate at the Globe and Mail’s website, that Canada was a “free and democratic country prior to the Charter.” He also wrote, “not everyone concerned with rights thinks that it is a good idea to give judges the power to strike down democratically enacted legislation.” Former Supreme Court justice Louise Arbour wrote about the Charter and said litigating the country’s most contentious and important issues “has provided a high-quality intellectual forum in which to debate issues that are not best left to majority diktat.” Why it should be left to the diktats of a handful of unelected, unrepresentative, and unaccountable legal elites is not clear.

Gwen Landolt, who is now with REAL Women, says today there is no reason to think judges are better equipped than politicians to rule wisely on any issue. Huscroft says “the truth is that judges have no greater insight than the people when it comes to debating the important moral and social issues of the day.” As Rainier Knopf and Ted Morton wrote in their 2001 book, The Charter Revolution and the Court Party, “issues that should be subject to the ongoing flux of government by discussion are presented as beyond legitimate debate, with the partisans claiming the right to permanent victory” when the courts make decisions.

Ottawa was right not to celebrate the Charter. The media was correct to give it so much time and space, but instead of cheerleading for the Charter the anniversary should have been used as a time for sober reflection. The problem is that because the Charter has mostly been about the so-called controversial moral and social issues – abortion, gay rights, pornography, prostitution, drugs, criminal law, immigration, and other issues that the public and legislators used to debate amongst themselves – liberals and Liberals have to pretend that the issues are settled and that there is no more division. The imposed lack of debate perpetuates the illusion that the Charter is a great thing beloved by all Canadians. If there was a real discussion about what the Charter has done to our democracy, would 80 per cent of respondents to most polls still hold the Charter in such high regard?