At 40, the Charter is taking an undeserved beating

KAMOURASKA, QUE.—Oh, Canada. Who will stand on guard for thee? That was my reaction after reading the screed against the Constitution in the National Post, written by the former Alberta Progressive Conservative MLA Ted Morton. Morton marked the April 17 40th anniversary of the signing of the repatriated Constitution and the entrenched Charter of Rights and Freedoms with an article headlined “After 40 years, the Charter is still one of the worst bargains in Canadian history.” To support his argument, he cites his 2000 book, The Charter Revolution and the Court Party, a 227-page summary of “how minority groups managed to subvert democracy”—by taking their cases to court. He also says “Quebecers and Westerners would prefer to be governed by legislators who live in our neighbourhoods, share our concerns, and are elected and accountable to us, rather than by distant, unaccountable judges in Ottawa.” How absurd. Depending on “legislators who live in our neighbourhoods” is a call to narrow parochialism. Ah, yes, your friendly neighbourhood MLA or MNA who lives in a lily-white community of people making megabucks, will go out of his way to protect the rights of Black, Indigenous, LGBTQ, and poor Canadians. Not. But Morton is completely off track in suggesting “Pierre Trudeau’s highest priority was to blunt the Parti Québécois' French-only education and language laws, which were creating an exodus of anglophone voters … out of Quebec. The more anglos that left, the stronger the separatists became. Which is why Quebec refused to sign the Constitution Act in 1982.” Whaaaaat? I had a front-row seat to the events of that time, and while the anglo exodus in the mid-1970s was tough for those of us who saw friends depart, it had nothing to do with the repatriation of the Constitution. Anyone who read anything by Trudeau or followed his first attempts at a new Constitution in Victoria in 1971 would have understood his motivations for a Charter. He was focused on protecting individuals from the excesses of the State. And amending the BNA Act in Canada. As an undergraduate, I learned the 1960 Diefenbaker Bill of Rights’ greatest flaw was that it was not entrenched in the Constitution. So, when I asked federal lawyers their impression of the new entrenched Charter in 1982, I was surprised when they replied “There won’t be earth-shaking changes.” Of course there were, and they changed Canada for the better, whatever Morton says. And if Supreme Court judges have acted in a way that countered the contemporary political narrative, perhaps it was because elected officials did not have the courage to act on legal abortion, same-sex marriage, minority language rights, assisted death, among other complex issues. As a country, we continue to be marked by the Charter and the 1982 Constitution. In recent years Section 35, dealing with Indigenous rights, has been in the spotlight. There were also Charter implications of the defeat of the sign provisions in Quebec’s Law 101, but only after the Charter’s notwithstanding clause (Section 33) was used. The indiscriminate use of the clause may be coming to a head, as Quebec’s Premier François Legault indulges in wrapping his most egregious laws (Bill 21 on “secularism” and Bill 96 on “protecting the French language”) in Section 33. To add insult to injury, Legault’s Coalition Avenir Québec piled on last week by supporting a failed anniversary resolution denouncing the repatriation of the Constitution without Quebec’s signature. And while the “Freedom Convoy” occupiers invoked the Charter to resist vaccination and take over Ottawa’s streets, they didn’t realize Section 1, describing “reasonable limits in a democratic society,” could be used to save the lives of hundreds of thousands of Canadians from COVID-19 or allow the people of the national capital access to their livelihoods. In the United States, so-called “originalists” interpret a 21st century legal system using 18th century circumstances. Hence “the right to bear arms” was for a militia, not teenagers armed with semi-automatics. And yet, despite that, and the fact the majority of men who drafted it owned slaves, there is little counternarrative about their constitution. Rather than slagging our Charter, we should be celebrating it, and ignoring the nasty, narrow, parochial minds who fail to recognize the benefits it has wrought for all Canadians. Andrew Caddell is retired from Global Affairs Canada, where he was a senior policy adviser. He previously worked as an adviser to Liberal governments. He is a fellow with the Canadian Global Affairs Institute and a town councillor in Kamouraska, Que. He can be reached at pipson52@hotmail.com. The Hill Times