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The Charter at 30

a_majoor

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I noticed a little tidbit on the CTV "ticker" that runs along the bottom of Newsworld: the Young Dauphin complained that the government was "ignoring" the charter's 30th anniversary.

Now my objection to the Charter is it is poorly thought out and poorly written; if something is a "right" then it is an absolute and canot be qualified with weasel words, "notwithstanding" etc.

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This basically says that it is open to interpretation, and who knows what some judge or future Parliament might construe as "reasonably justified"

Section 15 is actually funny in a way, since subsection 2 essentially nullifies subsection one:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.(84)

And as noted, without property rights (the ownership and unfettered use of personal property) there is no legal economic expression of liberty.
 

Infanteer

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E.R. Campbell said:
Because it is written down and, therefore, static.

I don't have too many problems with the Charter itself, but I agree with you here.  Charter politics are basically viewed as political suicide so we are stuck in 1982, regardless of national/political desires to amend the Senate, etc, etc.

Perhaps a less stringent amendment system would make the Constitution more useful.
 

Edward Campbell

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Both Prime Minister Harper and his arch enemy Lawrence Martin are wrong:

1. The PM says, "In terms of this as an anniversary, I think it's an interesting and important step, but I would point out that the Charter remains inextricably linked to the patriation of the Constitution and the divisions around that matter, which as you know are still very real in some parts of the country;" and

2. Martin says, "with its exclusion of Quebec, the patriation exercise set in motion a fracturing of the country’s unity."

Now, while I am happy to admit that the "exclusion of Québec" and the "night of the long knives" (where the "gang of eight" stabbed René Lévesque and, by implication, Québec's legitimate, national aspirations in the back) are well and deeply entrenched in Québec's mythology, they are, Constitutionally, irrelevant. Trudeau was clumsy in his dealings with Lévesque and he was seriously outmaneuvered but, mythology aside, it doesn't matter a damn if Québec's feelings were hurt; it is IN the Constitution as we can see by the fact that it uses it to achieve its own, parochial, provincial ends.

I agree with not "celebrating" the Charter but we should do that, do nothing, for the right reason: because the Charter is minor league.
 

a_majoor

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A very interesting historical POV; the Iron Lady was also ambilalent about the Charter for many of the same reasons that people in Canada who are against the charter have stated:

http://fullcomment.nationalpost.com/2012/04/17/frederic-bastien-margaret-thatchers-problem-with-the-charter/

Frédéric Bastien: Margaret Thatcher’s problem with the Charter
Frédéric Bastien, National Post  Apr 17, 2012 – 7:00 AM ET | Last Updated: Apr 16, 2012 5:08 PM ET

Thirty years ago, on a warm spring day in April, the Constitution Act, 1982, was officially proclaimed and the Charter of Rights came into being. There was a grandiose ceremony on Parliament Hill, overshadowed only by the absence of René Lévesque and by a thunderstorm mixed with hail that struck in the middle of the festivities.

There was another notable absence, though. Margaret Thatcher, the British prime minister, had declined Pierre Trudeau’s invitation. She’d supported his patriation package all along, despite the initial strong provincial opposition and the reluctance of many parliamentarians in Westminster. Yet the “blessed Margaret,” as Trudeau once described her, considered the Charter to be an embarrassment and the celebration not worthy of attending. The Falkland Crisis provided the perfect excuse to avoid the trip.

Thatcher’s reaction was representative of the sense of uneasiness that existed at the time in British political circles. While ministers, MPs and peers wanted Canada to be completely independent, many were troubled by the fact that they were asked to enact a bill of rights that went against the principle of parliamentary sovereignty. Their doubts were warnings about what awaited Canada on the eve of the Charter era.

Related
Jonathan Kay: Thirty years later, enough with the Charter-worship

Rainer Knopff: Using Charter hyperbole to further political ends

Adam Dodek: Don’t hate us because our Constitution’s beautiful

Trudeau’s strongest argument in favour of including a Charter in a repatriated constitution was that Canadians would regain their freedoms. How would this be achieved? By virtue of the fact that judges would now be able to interpret the general provisions of the Charter and, in the name of fundamental rights, strike down statutes enacted by the people’s elected representatives.

Margaret Thatcher believed that this approach was wrong. In one of her first speeches as prime minister, she explained that her government was determined “to return to one of the first principles which have traditionally governed our political life … the paramountcy of parliament for the protection of fundamental rights.” By that, the Iron Lady meant two things. First, rights are not absolute in a democracy. For example, a man cannot yell fire in a crowded theatre in the absence of a blaze and then justify his action in the name of freedom of speech. There is always a limit to individual rights. Thatcher thought it essential that elected politicians should have the power to draw the line, not judges. Second, she was convinced that parliamentarians were better at defining and protecting rights through vigorous debates, arguments and counter-arguments, while letting the people decide, at election time, which party is the best defender of their liberties.

This is the system that existed in Canada before 1982. While working well, it was not perfect. The violation of the Japanese minority’s rights during the Second World War is an example of a tragic failure. But Trudeau’s Charter of Rights has failed to improve things. Just a few years ago, in the middle of another war, the war on terror, judges neither prevented Maher Arar from being sent to Syria to be tortured, nor were they able to bring him back to the country. The threat of a legal procedure under the Charter did not seem to matter a great deal for the government. But when Arar’s situation provoked a storm in Parliament that then triggered an outcry from the public, Ottawa suddenly managed to get him out of Syria, officially apologized and eventually paid him $10-million.

Hence Thatcher correctly foresaw that the Charter would fail to improve respect for human rights in Canada. Others were skeptical too, including John Ford, the British high commissioner, whose sister and brother had adopted Canada as their country. Upon leaving Ottawa in 1981, he sent a warning to London about the dangers of the Charter in his final despatch. “If enacted, Trudeau’s constitution seems bound to lead to an endless and divisive litigation.” For him, Canada was among “the most over-governed communities in the world,” and he thought there was a sense of distance between Ottawa and ordinary Canadians. To solve the problem, he said, Trudeau was unfortunately proposing “a legal framework for unity, with courts to enforce it and a federal government strong enough to impose unifying policies.” This approach suited “the bureaucrats of Ottawa, who have a vested interest in the aggrandisement of federal power.” It also appealed “to the minds of academia and media, and, particularly, to the anglo-francophones of Montreal, who see themselves as the real elite,” but it was detrimental to the interest of Canadians in general. “The realization of the Trudeau dream,” Ford predicted, “could become the creation of a divisive and unacceptable procrustean bed to alienate them still further from the Ottawan bureaucracy; and multiculturalism rather than biculturalism has already become a vogue word of the government.”

Ford’s predictions were well received in London and, three decades later, events confirmed the accuracy of his analysis. Fuelled by advocacy groups often funded with public money, the Canadian courts have launched a vast enterprise of social re-engineering. Thanks to affirmative action and multiculturalism, our traditions have been eroded and privileges given to politically correct lobbies at the expense of the equality of all under the law.

The Charter was supposed to give us a new sense of nationhood and pride. Instead, it added a whole range of new divisive issues to the ones that already existed. Canada was transformed into a collection of bitterly opposed, self-interested groups. The Constitution was used to transform their political objectives into rights in order to achieve gains at everyone else’s expense. This result is diametrically opposed to the stated objective. The British prophesy has come true.
 

Retired AF Guy

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In this Toronto Star editorial Roy Romanow lamenets that the Charter's emphasis on individual rights is not necessary a good thing. Re-produced under the usual provisions of the Copyright Act.

Siddiqui: Is the Charter changing Canada for the worse?

April 17, 2012

Haroon Siddiqui


The Charter of Rights and Freedoms, the 30th anniversary of which falls today, is changing Canada for the worse — its emphasis on individual rights may trump the broader public good and even open the door to Americanization of medicare, says one of its architects, Roy Romanow, the former NDP premier of Saskatchewan.

A new generation of “Charter kids” and “Charter judges” is advancing individual rights and diluting the “communitarian impulses” of Canadians, he said in a telephone interview from Saskatoon, where he teaches at the University of Saskatchewan.

Romanow played a pivotal role at the historic 1981 First Ministers’ Conference in Ottawa that paved the way to the signing of the Charter by the Queen on April 17, 1982.

As Saskatchewan’s attorney general at the time, he worked across party lines to help break a deadlock between then Prime Minister Pierre Elliot Trudeau and the premiers.

Joining him in brokering the Charter were Liberal Jean Chrétien, then-federal minister of justice, and Conservative Bill Davis, premier of Ontario, and his attorney general Roy McMurtry.

I spoke to all four for the landmark Charter anniversary.

Chrétien, Davis and McMurtry spoke glowingly about how the Charter has made Canada a more equitable society.

It certainly has, said Romanow. But it’s also opening the door to a more self-centred society.

“Before the Charter, we essentially looked for the resolution of federal-provincial disputes more from a provincial perspective, a regional perspective and a communitarian perspective.

“Now after 30 years we have empowered individuals and they have tried to enforce individual rights.

“We have a new generation of Canadians who don’t see Canada the way I saw it. My generation looked to over-arching Canadian values being predominant. And that meant that there were more opportunities of sharing, accommodating and compromise.

“When I teach today, I notice that these Charter kids think more individually. They have less of a historical connection to the notion of communitarian impulses. It’s almost like a different country now.

“They see Canada through an individual lens, whether it’s their gender rights or health rights. It’s worrisome because the answers are not always either/or.”

Romanow cited a 2005 Supreme Court decision rejecting Quebec’s prohibition against individuals buying private health insurance for publicly available health services.

A Montreal man waiting for a hip replacement had mounted a Charter challenge against the ban. The court’s ruling in his favour was seen as opening the door for private health case, thereby undermining medicare.

While medicare is a powerful national tool of collective Canadian action, Romanow said, “in its actual application, the impulses are all individualistic. This is the result of the culture of the Charter.

“This case is a cautionary tale that we may be weakening the ties and the fabric that bind this nation together and provide us with such programs as the Canada Pension Plan, the Quebec Pension Plan and national health care.

“In effect, the court was obligating the state on an elective procedure, regardless of the state’s ability. If you obligate the state to provide services at any cost, you inevitably end up going the privatization route.”

That leads to the American way. “Canadians see medicare as a social good. Americans see it as a commodity. That’s the sharp, sharp contrast between our societies.”

The lesson to be drawn, he said, is that governments must provide “social services in a timely and affordable fashion. If they don’t, the courts will get more and more into this game,” thereby redefining our social programs.

Article Link

I was going to write a big long spiel about how much Romanow is out of touch, how things have changed, people are more willing to stick-up for their rights, yada, yada, yada, but its been a long day and to put it simply in my view... Mr. Romanow is full of you know what.

And while speaking of individual rights, its my understanding that Romanow was the person responsible for convincing Trudeau to keep property rights out of the Charter.
 

Edward Campbell

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I would take exactly the reverse view: there is too much emphasis on collective or communal rights in the Canadian charter. The whole business of rights is, fundamentally, about protecting individuals from the whims of the community, most often represented by the sovereign (or president) and his (or her) 'servants' (armed and civil). The community already has power, it doesn't need 'rights' to go with it.
 

Brad Sallows

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Celebrate the Charter at 30 - who are they kidding?  25 and 50 are traditional milestones.  Interpretation: "celebrate the Charter at the nearest number divisible by 5 because the existence of a Conservative majority government gets up our Liberal noses and we need a good round of wanking in the media."

Of course our Charter is bound to be popular among established governments who like their people to be free, but not too free: enumerated not-quite-inviolate rights for the people, and few to no limitations on the state.  The constituency for US-style constitutional law is among people living under the boot-heel of an oppressive government: they have different views regarding the rights to expression and to keep and bear arms, and strictly enumerated powers for the government.  Following a successful revolution and transition to fairly stable representative government, the history favours the US model.  It is too much to expect those obvious factors to dawn in the minds of the Liberal fart-catching community.

I am among those who doubt that our Charter added much to our freedom, while it added much to the expense of litigating and providing entitlements.

It is ironic that the centre-left and left deplore the "ungovernability" of the US and the respect accorded its constitutional law by its courts, while simultaneously deploring the "entirely too governability" of Parliament and look to the courts to create excuses to overturn and block legislation.  Of course it isn't ironic at all; it is mere hypocrisy: the underlying principle on the progressive wing is "rightward government should be mired in tar, leftward government should be unrestricted".

 

Kirkhill

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E.R. Campbell said:
Parliament is not, and is not meant to be supreme in all matters. The crown exists in three 'states:'  the Queen-in-Council, the Queen-in-Parliament, and the Queen on the Bench which are the executive, the legislature and the courts, respectively. Our checks and balances are every bit as carefully wrought as are those in the American constitution. The Queen in Parliament keeps a financial and regulatory check on the Queen in Council, the Queen in Council appoints the judges who, in their turn keep the Queen in Parliament in check.

Sorry for taking so long to address this comment (I was having difficulty juggling work with my priorities).

You mention the Queen in Parliament, the Queen on the Bench and the Queen in Council.  It seems to me that there is a common thread here: the Queen.  As much as we agree that she is a figurehead and that Bagehot had it right there is still a reality of a real personage on the throne binding all three entities.  There is still a real "decider" available to the system.

As you state, Henry Curtmantle and his shy and retiring wife, Eleanor of Aquitaine, revised the rules of law and governance in the English part of their empire.  Eleanor, I believe, might have had something to do with the changes since she had a history of dabbling the law by introducing admiralty law to Aquitaine via the Rolls of Oleron and later extending it to England.

I would argue, however, that the monarch has always been bound by two competing interests: tradition - as encapsulated by the elders and then codified as judge made common law; and vox populi - the wishes of the people. 

The role of the monarch is to find the consensus between the two, or, if consensus is impossible and he is confronted by immovable object and irresistible force then he must decide.

Henry, in addition to the sage advice of his dear Eleanor, also had the advice of his Privy Council.

De jure we still have the same dynamics - all of the same institutions are still in place - and all just as valid and useful as they were 900 years ago but, de facto, the monarch has been sidelined, neutered.

We need a functional monarch (and if there was one rationale that this monarchist would accept for a Canadian President it would be that).

Unfortunately I am quite happy with a monarch that has to be dragged kicking and screaming to the bench every century or so to make a decision.  I would not be at all happy with a president that wants to take part in day to day governance (and that is the reason I can't accept a Canadian President).

As to Dalton - better Dalton, or Harper, on a 5 year leash than the Chief Justice of the Supreme Court of Canada on a sinecure for life.

I don't need to remind you that while our nominal Head of State (GG acting in right of Her Majesty) is effectively neutered the Deputy GG is Beverly MacLaughlin.  In the absence of the GG she has all the signing authority of the GG, including that of CinC.  That plus the bully pulpit of the bench.....



 

Oldgateboatdriver

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E.R. Campbell said:
Property rights are anathema to the governing class in and around Ottawa ~ my guess is that 75% of the senior civil servants (director through to DM) (and 99% of Francophones educated in Québec) believe that property rights run counter to the good, Canadian, Liberal values they hold.

Be careful here E.R.C., the Quebec Charter of Rights and Freedoms (adopted by the PQ before the repatriation) actually recognizes property rights as a fundamental right. Like all Provincial such Charter, it is given, in the province, a "quasi-constitutional" value - so its not perfect.  Remember that the Canadian Charter was adopted by the "Trudeauists" without the assent of the Quebec government of the day (a PQ government under Levesque, who had served WWII with the Americans and held their values in higher esteem that those of the Canadian Liberal party). Funny enough, at the time, the PQ government would have been in favour of the Charter, with some mods, when most other provinces (especially the Western Provinces) disagreed. It was on most of the other portions (read "language related" and ""Federal spending powers not curbed")  that  Quebec did (and still does -regardless of who is in power) disagree.

Interestingly enough, the points on which Quebec could not then agree were exactly the same that could no be supported (originally in any case)  by one other province: Alberta - but for different philosophical reasons. A little noticed fact of National politics in Canada is that  Alberta and Quebec, even if for completely opposite reasons, have very similar (near identical) views on the place and role of the Federal government in national affairs. It is also little understood outside of Quebec that any Quebec government would gladly renounce federal equalization transfer payments (yes!) in exchange for the Feds butting out of what is considered to be provincial jurisdictions.
 

Edward Campbell

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My recollection of 30 years ago is that the main opponent of property rights was Trudeau, himself, supported by Chrétien and, pretty much, the entire bureaucracy. The other principle antagonists, more important, ultimately, than René Lévesque, were Sterling Lyon of Manitoba and Blakeney of Saskatchewan who, essentially, wanted the same thing, parliamentary supremacy, for opposite reasons. No one, as far as I recall, argued, actively, FOR property rights.

 

Jed

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I seem to recall that Blakeney was Premier of Saskatchewan when the province acquired numerous Potash mines from the private sector to set up the Potash Corporation, hence not exactly supporting property right principles.


 
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