Thoughts on the 40th anniversary of the Charter of Rights and Freedoms
On April 17, 1982, the Charter of Rights and Freedoms was officially enshrined in the Canadian Constitution. To commemorate the occasion, here are a few observations I had about the Charter and its impact on Canada:
- It’s provided important protections for many different groups and causes, ranging from women’s bodily autonomy to official language minorities to people with disabilities. In that respect, the Charter has been a tremendous step forward, and one of Pierre Trudeau’s greatest contributions to Canada.
- The concept of a written bill of rights has its roots as much in conservative Western Canada as it does in any Liberal part of the East. John Diefenbaker got the ball rolling with his Bill of Rights in 1960, and Alberta’s Conservative Peter Lougheed was one of the provincial Premiers who signed off on the final version of the Charter. Western Canada’s fingerprints are all over the 1982 deal, as much as Trudeau’s.
- People often say ‘compromise’ as if it’s a dirty word, but the Charter is actually an excellent example of compromise done right. Many of the provincial Premiers were leery of allowing unelected, unaccountable judges to overrule the decisions of elected officials, so the notwithstanding clause serves as a compromise. It allows elected officials to have the absolute last word on many issues (thus preserving the element of Parliamentary supremacy our democracy is built on) but the popularity of the Charter has created a convention whereby elected officials (until very recently) only used the clause if there was a popular demand for it.
(A ‘constitutional convention’, for the record, is an unwritten ‘rule’ or expectation about how politics are done in practice. For instance, a constitutional convention is that the federal Cabinet should have representation from different regions, ethnicities, genders and official language groups. It’s not specifically required under the constitutional text, but it impacts people’s perceptions of the Cabinet’s actions.)
Ralph Klein refused to use the clause against the Court’s ordering gay rights be written into Alberta’s provincial human rights codes, or to renew the clause’s upholding a heterosexual definition of marriage, and Albertans did not punish him for it. Jean Chretien, Trudeau’s lieutenant in 1982, suggested that the clause could be used to overturn rulings calling child pornography or hate speech “free speech.”
- More than that, the Charter is balanced with considerations about how far rights can actually work in practice, with Section 1 stating that rights can only be protected to the extent that is reasonably justifiable in a free, democratic society. That’s why in my view bans on protests at hospitals, schools and especially the private homes of public officials would all be justified. There’s no justification for threatening healthcare workers, teachers, schoolkids and especially people in their own personal homes.
