Wednesday, 16 November 2011

Charter Confusion: Occupation and Distortion

It's thoroughly alarming and entirely problematic that two of the most powerful and influential groups in this country - its politicians and its media - have such a shaky grasp of basic constitutional principals, particularly as they pertain to the Charter of Rights and Freedoms. That 1982 constitutional addition is perhaps the most misunderstood document in the country, with some espousing it as unlimited, while others underestimate its force and effect. With battles over the Occupy movement heating up with evictions notices printed and overzealous 'law' enforcement officers at the ready, recourse to the Charter by both sides is growing.

A basic grasp of constitutional principles - both the codified portions and the unwritten norms - is fundamental to understanding politics in this country, yet so few of our political and media elite demonstrate much depth here. One need only look at election coverage as an illustration. The basic principles of government formation are entirely lost on our media, something that has only been exacerbated by politicians themselves. The concept of responsible government - a notion that underpins the foundations of governance - and intrinsic components such as confidence and ministerial responsibility are poorly understood.


Look at the language surrounding the dissolution and formation of governments. Confidence in particular is poorly understood in general and is simplified to the point of error by media commentators. First, they promulgate the myth that anything labelled 'confidence matter' - particularly an opposition 'motion of non-confidence' - is an immediate death knell of a ministry. This isn't the case. A government may, if it likes, try its luck yet again - albeit with slim chance of success - particularly on votes that do not pertain to budgets or a piece of government legislation. There is nothing to force the immediate death of a government on a simple motion. A government could, conceivably, carry until it requires recourse to the House - again though, an unlikely scenario. There is as well the small matter of the Governor General who is the one who kills governments, not votes in the House. Nuance, of course, is not something journalists tend to do well.

Government formation is equally confused. The coverage of the 2011 Ontario election provides ready evidence of this. It was widely reported that whoever wins the most seats would form government. This conveniently sidesteps entirely the matter of confidence and presumes a party with the most seats could win the confidence - perhaps only temporarily - of the legislature. This is entirely contrary to the history and practice of parliamentary government (one need look only to the King years for this). Again, it also conveniently sidesteps the small role of the Lieutenant Governor, the one who invites a leader to form the government. Westminster political systems are not presidential systems, yet they are so often framed as such, with a province electing directly a premier. This is a total bastardization of the system itself, and something the media - with the aid of politicians - have perpetuated. It also doesn't help when the Prime Minister lies the country claiming that in the Canadian system whoever wins the most seats automatically gets the first shot at forming the government. Again, this boldfaced calculating lie flies in the face of history and practice.

Now we have the strange case of Elizabeth May - the entire Green Party caucus - starved for media attention and hungry for changes to the electoral system that favour her party, latching on to a court challenge that is doomed from the beginning. The Quebec based group the Association for the Advancement of Democratic Rights is seeking leave to appeal its rejection by a Quebec court of its Charter challenge to that province's first past the post electoral system. The Supreme Court will refuse to hear this case on simple grounds of common sense, and rightfully so. This is a case that makes a mockery of what the Charter stands for and also represents a gross distortion of its basic principles.

The group is arguing on the basis of Section 15 - the equality provision - arguing that the current electoral system is unconstitutional because it treats people unequally. Basically the argument rests on the implicit assumption that a vote is only valuable if it is directly transferable into an outcome. As such, they are not arguing for equality, but equality of outcome. Asking for equality of outcome from a mechanism - and this is what all voting does - that mediates difference and requires a choice is ludicrous. The electoral system treats everyone the same: one vote with no guarantee that your preference will be achieved. It requires combination with others to impact the system.

There is, however, an argument to be made that there is inequality between ridings and between regions. True, a vote in PEI is 'worth more' than in Ontario, where the ratio of MP to population is huge. However, this ignores entirely that fact that, while it may be undemocratic and fly in the face of representation by population, it is entirely constitutional and forms part of the Confederation bargain. It would do well by these groups to remember that the Charter doesn't stand apart or above the Constitution Act, but is a part of it and, as such, what is in the Charter is not withstanding existing constitutional provisions. Far too often is the Charter portrayed as a free standing document above the fray, rather than as it is, a part of a larger document. Elizabeth May's latching onto this challenge shows either an ignorance of reality or a shrewd, calculating mind. It could very well be a mix of both. If it is the latter, however, it illustrates the broader trend of politicians distorting the reality of our system in order to exact some partisan advantage. The demand of all party leaders that the Auditor General release her report, despite it being illegal to do so, provides yet another recent example.

While those clinging to the Charter as their panacea overstate the document and rip it out of its constitutional context, so too do those looking to the same document in order to pronounce rights as inherently limited. These arguments are growing apace as efforts to evict occupiers from St. James park continue, with the city - Rob Ford anyway - growing impatient and the courts issuing an injunction. The Sun editorial board has rightly indicated that nothing in the Charter is absolute and that there are built in limits. However, their interpretation of the document lacks understanding in the same way those at the opposite pole do. First, a note on terminology. Those people camped out in St. James Park are not squatters,  they are occupiers. There is a massive difference and language matters, particularly as it comes to the Charter. Occupation is a political act, squatting is not. The encampment is not because they are homeless, but because they are making a statement. This vastly affects the interpretation and force of the matter.

In both Toronto and New York, city by-laws seem to have become more important than constitutionally entrenched rights. Toronto, like other cities, is citing public health concerns as a rationale. Here anti-occupy pundits readily quote Section 1 which states that rights are subject to "reasonable limits, prescribed by law, as can be demonstrably justified in a free and democratic society". Sadly, this is often read as if the 'demonstrably justified' proviso were absent. Moreover, it is ignorant of the test the courts use to determine reasonable limits - the Oakes Test - and thus overstates the reach of Section 1. While public health is a concern, there must be a demonstrable link. Mere potentiality is not enough. This is important as there must be minimal impairment and proportionality in enforcement.

In both cases it is difficult to see how evictions of a peaceful protest from public space can meet these criteria. Moreover, since camping is essential to occupation, and occupation is at its heart a political statement protected under the Charter, unless there are clear examples of disease or actual crime (criminal code, not mere by-laws) in the park, eviction notices are unlikely to pass the test of Section 1. There is also no overwhelming evidence that occupiers are posing a hazard or violating the rights of others by there action. Since, as the Sun makes clear, there is no right to use a park, it seems disingenuous that their recourse for denying the park to one group is to provide it to another. Antagonists of the movement need to state clearly exactly what they feel constitutes a violation of rights of others. If a right to free speech and assembly - peaceably and without disrupting traffic or imperiling life - can be limited, it's logical that a right not to be inconvenienced would be similarly violated. In a massive urban environment like Toronto, the problems attributed to the protesters are not problems the occupation created, they are problems of big city living. Noise from human activity, transit, construction and the like are all common problems we all must deal with. Why tolerate jackhammering from construction sites but not drum circles? Do citizens not have greater claims than construction equipment?

Appeals to to the Charter from all sides are often distorted by attempts to make the document conform to very specific, partisan notions of politics and law. Certainly there is room for interpretation and disagreement, but often these arguments simplify provisions, providing only a constitutional caricature devoid of subtly, nuance and depth. Both sides would do well to consult pertinent decisions - Oakes, Law etc -  or, indeed, read the document itself, perhaps in conjunction with a dictionary to explain concepts they don't understand. The political right needs to move beyond Section 1 and understand that Charter rights do not have a curfew and are not subject to a time limit. It is up to the state to demonstrate why its actions are reasonable, not the protestors. Similarly, the political left should not simply fall back on predictable claims to sections 7 or 15 without placing them in context. Thankfully the courts are well placed to clarify the situation. Unlike the ideologues at the Sun, they can't simply pick and choose which sections to highlight and ignore those sections that are unpalatable to their cause.

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