How the Charter of Rights let Canada down

Feb 21, 2022 by

by Yuan Yi Zhu, UnHerd:

The document has reduced our definition of freedom to box ticking.

If Canada has a sacred cow, akin to the NHS in the UK, it is the Canadian Charter of Rights and Freedoms — a constitutional bill of rights added to our constitution in 1982. As a national symbol, it is more popular than the national flag, the national anthem, and even hockey. Many Canadians can barely imagine that other, more benighted, lands might also have put some fundamental rights down in writing.

This would normally be harmless enough. Canada is after all a young nation, and nations need symbols. But the Charter, though full of admirable sentiments, has also infantilised Canadian politics and public discourse. A vague document full of broad promises coupled with important qualifications (rights are subject to limits as “can be demonstrably justified in a free and democratic society”) and exceptions (judicial interpretations of rights may be subject to legislative override under s. 33, the notwithstanding clause), it has enabled generations of Canadian judges to act as supreme legislators by interpreting it in all sorts of creative ways, striking down disfavoured legislation at a whim.

Only a few months ago, for instance, a Canadian court ruled that it was unconstitutional to require prospective schoolteachers to pass a basic maths test — the Charter, you see, forbids this, because equality rights something-something. No policy of any importance is implemented without the courts, and usually the Supreme Court of Canada, chiming in, which suits politicians admirably because they can fob awkward issues to the judges in that way.

This is where the Canadian trucker protests come in. Earlier this week, the Trudeau government invoked the Emergencies Act to stop these protests, which have now lasted for almost two months. The Emergencies Act, which replaced the bluntly but honestly named War Measures Act in 1988, gives the power to the Governor-in-Council (in practice the Cabinet) to declare an emergency. Once an emergency is declared, the government can impose a host of drastic measures by executive fiat, subject to parliamentary review within seven days.

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