The Charter isn’t protecting our rights
Friday afternoon, I’m speaking in Calgary at the Economic Education Association of Alberta’s conference on healthcare. There’s still time to snag a virtual or in-person ticket if you’d like to attend.
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To speak ill of Canada’s Charter of Rights and Freedoms borders on heresy in this country. Nevertheless, it’s high time we admit it isn’t working.
Well, not if you’re looking to the Charter to safeguard civil liberties and constrain the state, that is. If what you’re after is a pseudo-aspirational list of malleable ideas that are nice in theory but not all that significant, it’s likely suiting you just fine.
The Charter, which turns 40 next year, purports to protect, among other things, the natural rights of freedom of expression, assembly and the press, as well as the rights to life, liberty and security. There’s a reason these concepts are enumerated in constitutions around the world, even in countries who don’t even pretend to uphold them – because they are important.
There’s also a reason they’re written down – because they can’t be taken for granted.
Since the onset of the COVID-19 pandemic, governments have treated these rights not even as suggestions, but rather as impediments.
Justin Trudeau’s vaccine mandate for air travellers effectively landlocks the unvaccinated, rendering them unable to enjoy the Charter right to exit the country (unless you count canoeing across the Atlantic).
Just yesterday, Manitoba pastor Tobias Tissen had to be sprung from jail after his arrest for the crime of worshipping during COVID. A couple of years ago, the imprisonment of a clergyman in a liberal democracy would have been unspeakable. Now, I have to ask “which one?”
Because this is a column and not a multi-volume book series, and because I’ve covered many of these stories as they’ve arisen, I won’t list every government Charter violation going back to March of last year. Provincial and federal governments don’t even deny they’re infringing on freedoms – they argue the pandemic and the Charter itself give them license to do so.
Sadly, they’re not wrong.
However, when courts accept the excuse proffered by heavy-handed governments that COVID-19’s uniqueness and gravity justify the suspension of Charter rights, they ignore that constitutions are necessary precisely for extreme events. Liberty generally doesn’t need to be protected when it isn’t under attack.
Because I can hear the distant echo of someone shouting “But rights are not absolute!”, let’s deal with elephant in the room – section one of the Charter.
This is the “reasonable limits” clause that effectively nullifies much of the Charter if a court buys a government’s claim that restrictions of liberty are “demonstrably justified in a free and democratic society.”
While there are now decades of jurisprudence helping courts delineate those limits, this has only further enshrined the inherent alienability and precariousness of our so-called Charter rights.
In the cultural, political and judicial realms, the exercise seems to be how broadly we can expand section one’s reach – thus narrowing the reach of the Charter’s most important clauses.
In effect, the Charter’s strongest section is the one that grants government a power, rather than the ones disempowering the state.
Section one of the Charter was never meant to be a trump card for trampling on civil liberties, according to Brian Peckford, the former Newfoundland and Labrador premier. Peckford is the last living member of the club of premiers around when the Charter was adopted. To say he’s displeased with these premiers’ successors would be an understatement.
“I’m sure that if any of the other first ministers were still alive, they would voice the same kind of shock and surprise as I do to see how callously what the governments – not individuals or organizations – are doing violates at least four sections of the Charter of Rights and Freedoms,” Peckford said in an interview on my show.
Those are sections two, six, seven and 15 for those playing Civil Liberties Bingo at home.
Peckford told me he’s written to every premier in the country with his concerns about the unconstitutionality of actions ranging from lockdowns to vaccine mandates. Not one has had the courtesy to even reply.
“They have not demonstrably justified what they are doing,” he said. “There’s a sort of collective psychosis or amnesia in this country where nobody wants to speak up on this.”
He’s a staunch defender of the Charter, but admits its tenets have been ignored for the last 19 months in ways that likely have his former colleagues rolling in their graves.
“I don’t think there was anybody in that room at the time…who thought that this would happen,” Peckford said.
The Charter has simply not immunized Canadians from government power. The last year-and-a-half should remind us that constitutional freedoms are nothing without institutions prepared to uphold them.