Home News Articles Judges have handcuffed our 30-year-old Charter

Judges have handcuffed our 30-year-old Charter

By | Calgary Herald on Apr 17 2012

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When the Charter of Rights and Freedoms was signed into law on April 17, 1982, many Canadians were cautiously optimistic — portions of it appeared to do what freedom-loving individuals think that constitutions should do, namely, protect individual rights by limiting the power of government.

But on its 30th anniversary today, ample reason exists that only serves to undermine this optimism. Virtually every clause of the charter that promotes individual freedom has been given a government-promoting interpretation by the courts.

Section 2(b) of the charter recognizes that everyone has the fundamental freedom of expression. Yet in the 1990 Canada vs. Taylor decision of the Supreme Court of Canada, the court permitted the government to restrict freedom of expression under the guise of protecting minorities from discrimination.

Section 13(1) of the Canadian Human Rights Act makes it illegal to communicate content that is “likely to expose” another person to “hatred or contempt” on account of their race, religion, gender, etc. There are several significant problems that make Section 13(1) an unjustifiable violation of freedom of expression.

The terms “hatred” and “contempt” are vague, emotionally charged terms, capable of a wide range of meanings. Since they lack a precise definition, these terms inevitably function as a mere proxy for the personal and political views of the judiciary.

Section 13(1) has no intent or harm requirement, making it possible to punish someone for acts that were never intended to be discriminatory and that caused no harm or actual discrimination. This has proven to have a chilling effect on the free expression of ideas.

Any benefits of Section 13(1) pale in comparison to the harms that it produces. The free expression of ideas, especially those that are unpopular, is of foundational importance in a free society. The power to legislate over expression should not be ceded to the government. Without a broad and meaningful guarantee of freedom of expression, individuals risk losing the legal right to express views that are contrary to the majority’s hegemony.

Section 7 of the charter recognizes the right to individual liberty and guarantees that no one can be deprived of his or her liberty unless justice demands it. Despite the clear wording of Section 7, it has become difficult to demonstrate to a court’s satisfaction that the right to liberty has been violated. As a result, liberty has become hollow.

In the 1988 R vs. Morgentaler decision, the Supreme Court of Canada decided that the right to liberty only grants individuals a “degree of autonomy in making decisions of fundamental personal importance.” In other words, the charter does not protect individuals from any of those minor intrusions that occur daily. Instead, it can only be relied upon when the government interferes with an individual’s ability to make extremely important, life-altering decisions. This is deeply problematic for many reasons.

There can be no objective distinction between a “decision of fundamental personal importance” and one that is less significant. There is no plausible metric for deciding what is of sufficient personal importance and what is not — especially in a pluralistic society.

Further, it’s absurd to ignore the fact that an aggregate of trivial violations of liberty can amount to totalitarianism. Yet following R. vs. Morgentaler, the government may freely regulate all the minutia of an individual’s life without violating the right to liberty.

Lastly, it intuitively seems backwards that individuals should be trusted to make “decisions of fundamental importance,” while they cannot be trusted to make lesser decisions on their own. And how is it that lawmakers can regulate those decisions that individuals routinely make, when those same lawmakers could not be trusted to make these types of decisions for themselves prior to taking office?

Over the 30 years of the charter’s existence, the courts have issued a constant stream of decisions restricting individual rights by promoting government authority. The Canadian Constitution Foundation hopes to stem the flow of these decisions and fan to life the embers of freedom that were present at the charter’s birth.

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