Monday, 16 April 2012

The Charter Legacy or: Why the Right Hates Freedom

Judging by the hyperbolic idiocy of the right wing media (and right wing trolls posting in the blogosphere), the Charter of Rights and Freedoms - entrenched in the patriated Constitution Act, 1982 - was the biggest mistake in Canadian history. Full stop. The Toronto Sun claims audaciously that the "Impact of the Charter polarizes us still". Certainly aspects of the Charter are polarizing, but his likely has less to do with the document itself than the effects of judicial review and unpopular Supreme Court decisions. On the issue of the Charter itself, however, there is no ambiguity.

Indeed, a poll conducted to ascertain public reaction on the twentieth anniversary of the Charter found overwhelming support. Only 4.5% of respondents considered Trudeau's bill of rights in the negative. Far from being 'polarizing', that Charter became intimately linked with Canadian identity. The eminent scholar of Canadian politics Alan Cairns has gone so far to label this phenomenon "Charter Canadians", identifying as the bearers of rights. For Cairns, the Charter represents a "citizens' constitution", fundamentally enhancing the notion of Canadian citizenship.

The British North America Act was a constitution of governments. It set out the relationship between institutions and levels of government, regulating the relationship between the central government and the provinces. As such, it mediated solely the rights via federalism, making little to no mention of the rights of individual citizens apart from a few collective rights (religious education, for instance). The introduction of the Charter fundamentally altered this calculus. From 1982, the relationship between government and citizens was codified and enshrined constitutionally. It recognized that, not only are Canadians entitled to certain rights, but that the state had reciprocal duties to individual citizens. Moreover, it expanded rights beyond basic political and legal rights to include social rights.

The Conservative government has done much to downplay the importance and centrality of the Charter of Rights and Freedoms to the Canadian polity. Harper has gone to great lengths to extol Diefenbaker's 1960 Canadian Bill of Rights. Indeed, this document is an important milestone - the first bill of rights in the Westminster world - yet it was limited by its lack of scope and purview. The bill was statutory only. It lacked constitutional status to set it above all other laws. Secondly, being a statute of the federal Parliament, it applied only to those institutions and areas over which the central government had control. Moreover, the Canadian Bill of Rights had little effect on the relationship between the government and citizens and essentially codified existing practice. It enumerated existing rights and failed to expand them. Secondly, the bill was part of a myopic view of Diefenbaker's 'One Canada' vision of the country which ignored fundamental differences between regions and individuals and, in essence, ignored the French fact in favour of a more white, British version of Canada. While recognition is due, Dief's bill had limited impact on the nature of Canadian citizenship or the behaviour of the judiciary.

While Harper is correct in one sense to laud this accomplishment, it is clear that he is doing so for less than forthright reasons. Indeed, given Harper's pathological aversion to any of the accomplishments of the Liberal Party - and especially Trudeau - his lack of interest is understandable. This is, however, a superficial explanation. The Conservative opposition of the Charter is much more deeply engrained and ideological. First, it runs counter to the narrative of Canadian identity propagated by the current government. Rather than emphasizes points of commonality around social rights and entitlements, Harper has actively sought to fix Canadian identity on a more militant footing, hence the focus on the War of 1812 - an imperial war fought not by Canadians but by staunchly British subjects and won, largely, by Native allies of the Crown - or the modern wars of Europe. Indeed, it ignores other nineteenth century developments in a collective Canadian identity - the rebellion of 1837 and the fight for responsible government - or the growth of social citizenship in the mid-twentieth century centred around social entitlements. 

Second, the staunchly neoliberal Harper views the expanded notion of rights beyond a few political (voting, standing for office) and legal (due process) rights to be anathema. They are an overreach of the state. Indeed, given the his legislative agenda, the expanse of political and legal rights included in the Charter itself are likely more generous than Harper would allow (since due-process hasn't been something particularly high on his agenda).

Third, one of the larger problems with the Charter goes beyond the provision of the rights. What the document has done is more profound. It has fundamentally altered the power balance in Canadian society by bringing those groups previously on the margins of society into the process, particularly by way of the courts. This has been one of the most longstanding complaints of the Charter: the so-called judicialization of politics. Right-wing critics like Morton and Knopff - authors of the awful yet influential The Charter of Rights and the Court Party - label those groups attempting to achieve public policy goals through the courts as 'special interests' intent on subverting the legitimate democratic process by utilizing the courts. This duo has host of acolytes, such as Ian Brodie - Friends of the Court - essentially replicating this stale, unthinking argument. Even more nuanced scholars, such as Janet Ajzenstat, decry the usurping of power away from Parliament by the courts and away from democratic institutions.

These scholars all miss the point entirely. What they ignore is the glaring fact that these groups were denied entry into the very 'legitimate democratic process' through which Charter critics claim they should be engaging. This includes a host of marginalized groups: women, Gays and Lesbians, Aboriginals and racialized groups. The courts offered a way, not to undemocratically direct public policy, but to claim rights as citizens that had been denied to them prior to 1982. Critics also ignore another glaring fact: the direct abdication by Parliament by its own accord. One need to look only at the abortion debate or marriage equality as examples. In both cases the courts were handed a loaded political question that the legislature was unprepared to tackle for want of courage. Indeed, Liberal and Conservative prime ministers - Martin and Harper - have both deferred to the courts in order to avoid opening contentious issues which could have hurt them politically. Finally, critics ignore the fact that - in both the pre- and post-Charter eras - dominant groups have regularly used the courts as a means to solidify and consolidate their power. The use of courts as a tool to affect public policy is nothing new. What is new is that the Charter provided a way for marginalized groups to use those same processes to claim the political, legal and social rights to which they are entitled as Canadians.

Finally, much of the criticism - particularly from lay persons commenting viciously about the Charter - has seized on official bilingualism. These critiques are as unthinking as they are racist. First, they speak to engrained intolerance of francophone Canadians. The language used has been vitriolic and hurtful. Second, they are entirely ignorant of the history of the country and the role of Quebec. Indeed, they ignore that it was the people of Quebec who first called themselves 'les Canadiens' and not the English. These complains attempt to deny the reality of francophone Canada, attempting to impose onto Canadian identity something that is linguistically and culturally English in origin and fact. It also ignores the attempt - albeit a failure as far as Quebec is concerned - by Trudeau to reinforce a pan-Canadian identity and to make Quebecers welcome in their own country. The Charter reflects the reality of Canada, one that does not simply replicate the notion of the country outside of Quebec. It acknowledges the central role of Quebec in Confederation. Anglophone Canadian critiques ignore the reciprocal nature of language guarantees in the Charter.

Those voices that are critical of the Charter carelessly take for granted that the rights that exist today were protected by the 1960 bill of rights or generally before 1982. They ignore the expanded legal protections, for instance, the enshrining of due process. They ignore the entrenchment of mobility rights, guaranteeing the right of any Canadian the right to work anywhere in the country, to move to seek new opportunities and the right to services - especially health care - regardless of where in Canada they happen to reside. They ignore the protection of fundamental rights: religion, conscience, assembly, association and freedom of the press, rights that were often precarious prior to 1982. 

The Charter, like all political documents, is imperfect. It represents the the good intentions and limitations of its drafters. It is incomplete - it consciously omitted rights based on sexual orientation and identity - and potentially limited - the notwithstanding clause, while rarely invoked, nevertheless constitutes a limit on rights as does the open-ended disclaimer of section 1. Yet it remains the most expansive bill or rights in the Westminster world and one of the most emulated globally. While it failed to convince French Canadians, it has nevertheless, as Kenneth McRoberts notes: "become for many English Canadians a central feature of their sense of a Canadian political identity" (1997: 185). Far from being 'polarizing', the Charter has been an unambiguously positive development. Beyond simply affirming rights and privileges, it has become the bedrock of Canadian citizenship and identity. Canadians, unlike their federal government, recognize this fact.

Further Reading:

Alan C. Cairns. Charter Versus Federalism: The Dilemmas of Constitutional Reform.
Kenneth McRoberts. Misconceiving Canada: The Struggle for National Unity.
Peter H. Russell. Constitutional Odyssey: Can Canadians Become a Sovereign People?

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