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The Inadequacy of the Canadian Charter of Rights and Freedoms

By Matthew Clark

On April 17, 1982 Queen Elizabeth the 2nd of Canada, signed into law the Constitution Act of 1982, a document which included the 'Charter of Rights and Freedoms.' Canada's Charter of Rights and Freedoms was an amendment to the country's constitution which was heralded at the time of implementation as a great advancement in the recognition of individual rights for the nations citizens.

Until 1982 Canadians had enjoyed protection from government overreach into their private lives through two sources. In the British North American Act of 1867, the nations constitution, there was an Education Language Rights clause, binding on the provincial governments, due to the fact that education was under their jurisdiction. There was as well a property rights clause, a rather weak one, which was also binding on the provincial governments. Since resources, and land entitlement, were again under provincial domain, it was believed by the 'Fathers of Confederation,' there should be some restraints placed on the provinces political rulers in that area.

A second safeguard for Canadian individual liberty was provided on August 10, 1960, when the federal government of John Diefenbaker had Parliament approve the 'Canadian Bill of Rights.' This statute (not a constitutional amendment but a law) was not binding on the provinces, and proved of little value since the courts, both lower and higher, were reluctant to nullify laws which conflicted with the 'Bill of Rights.' In theory this law provided for freedom of speech, religion, security of person, the right to life, liberty, and fundamental justice. There was also a right to property, and counsel.

In combination the "Rights Clauses" of the British North American Act, and the "Canadian Bill of Rights," should have provided Canadian citizens plenty of security from government encroachment into individual life. Very narrow interpretations by the Canadian courts of these legal documents meant that was not the case. Nevertheless Canada was a nation during these years with a high degree of personnel freedom, in conjunction with a vibrant democracy. Everyday Canadian common law, complimented with political custom, and tradition, meant the country's citizens enjoyed the personnel liberty denied to so much of the rest of the world. Nevertheless these rights were not guaranteed, at least not in the constitutional tradition of an explicit document, written in a direct, well defined verse.

To correct what they saw as a national vulnerability, the federal Liberal government of Pierre Elliot Trudeau in 180 invited the nations premiers, leaders of the provincial governments, to a Constitutional conference. To this day the results of the conference, and the way it was conducted, are controversial. Suffice to say the proceedings involved brass tacks, political horse trading, as well as personnel slights, and alliances. In many ways it was old fashioned Canadian political compromise at it's worst. A repetition of Canuck history, in terms of political process, which has caused the country, despite being endowed by the Creator with the richest of lands, to underperform to it's potential, time and time again.

In the end the political leaders of the different levels of government, with the exception of the Quebec Premier, Rene Levesque, came to a broad, rather mediocre consensus. On fundamental freedoms it was agreed to have liberty in the areas of conscience, religion, thought, belief, opinion, expression, press and other media, assembly, and association. In return for getting these rights constitutionalized Canadians would lose the protection provided by the 'property rights clause' in the British North American act.

As has been pointed out by historical figures such as Thomas Jefferson, Adam Smith, and Benjamin Franklin, as well as modern philosophers such as Ayn Rand, the right to property, and the right to life, are the cornerstone to individual liberty. Without property protection all other rights exist on a foundation of sand. Individuals use their property as leverage in any dispute with authority. To undermine that resource is to enhance authoritarianism markedly. In this instance Canadian political leaders were actually reducing individual freedom during 1980-1982, while adroitly claiming to be magnify it.

If there was any doubt in the true nature of the Canadian Charter of Rights and Freedoms it was removed by a further innovation in Canadian constitutional practice. For as well as losing property rights Canadians were also informed that the federal parliament, as well as any provincial legislature, could opt out of any Charter Freedom by enacting the "NotWithStanding clause." What this meant was that if a majority of the members of any Legislature, or Parliament, wanted to pass a law which violated the Charter, all they would have to do was insert the "NotWithStanding Clause into the bill, upon which the law would be exempt from judicial scrutiny. There was one limitation to the implementation of this procedure. After 5 years the legislature/parliament was required to renew the law by holding a vote, with majority support mandatory to keep the bill in effect.

Thus the Canadian Charter of Rights and Freedoms is operational only so long as it is convenient to the jurisdictional government in question. In reality it protects nothing, and no one! When the Quebec legislature's members decide to pass draconian decrees against a it's English speaking minority population, it does so with the "NotWithStanding Clause in tow. If the Ontario government decides to pass back to work legislation against Education support staff before those labourers have actually gone out on strike, it inserts the "NotWithStanding Clause" into the bill.

This culture of Constitutional convenience has permeated the Canadian legal system to such an extent that politicians often do not have to use the offending Clause to violate the Charter. Various Emergency Decrees/Laws have been passed by all levels of political administration which override the Charter. Pushback from the courts, a responsibility of all jurists regarding constitutional law, has been minimal. When authorities across Canada instituted draconian health regulations, which clearly violated Charter Rights, from 2019-2022, the nations courts supported the edicts to such a degree that they became the tinpot dictators best friend(s)!

With this dismal history the "Charter" is obviously inadequate. To recapture their individual freedom Canadians must amend the Constitution by inserting a property rights provision, while simultaneously getting rid of the "NotWithStanding Clause." Otherwise the authoritarian trends so obvious in Canadian political life, will continue unabated.

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