The 20th anniversary of the Charter of Rights and Freedoms was cause for much liberal self-congratulation. The federal government announced it would spend $1.5 million in pro-Charter propaganda and Jean Chretien praised the document, calling it “the most profoundly democratic declaration in our history.”
What was curious about Chretien’s self-congratulatory remark (as Trudeau’s Justice Minister he was one of the framers of the Charter) was not just the confusion over the difference between freedom and democracy, but that it belied a complete ignorance of the fact that the Charter has led to a diminishment of democracy that would render anyone with a sense of shame incapable of such hyperbole.
The fact is, policy-making in the Charter era has fallen on the shoulders of judges for almost every important issue, resulting in what F.L. Morton and Rainer Knopff, a pair of University of Calgary professors, call “judicialized politics.”
In their book, The Charter Revolution and the Court Party, Morton and Knopff outline how democratic debate among parliamentarians and the public has been replaced by the clash of rights argued over by legal experts and professional activists (often government funded) in tribunals, human rights commissions and courts. And judicialized politics, they say, “especially when it concerns constitutionally entrenched rights … (has) a more closed and intolerant character.” Thus even when the courts make or overturn law on procedural grounds, as in the Morgentaler case (which did not create a constitutional right to abortion but found that the particular restrictions at the time were too onerous), litigants are “encouraged to claim constitutional trumps rather than engage in government by discussion.”
That explains, in part, why the abortion debate is in the state it’s in: one side can unilaterally declare the issue settled by misrepresenting what the Supreme Court has actually done.
