I was having lunch with a friend. She was complaining about the man in her life. “He won’t take charge in the relationship,” she lamented, “And when he does, he does it wrong.”
Forty years ago, when Canada enacted the Charter of Rights and Freedoms, it asked the courts to take charge of our fundamental rights. They have done so, but they have done it wrong. And unlike my friend, we cannot get out of the relationship.
The Canadian legal system, derived from the British, is based in part upon the principle of legislative supremacy. Parliament and provincial legislatures can generally enact any laws within their jurisdictions as they wish. Before 1982, our constitution included only a few restrictions on those powers. Courts infrequently declared statutes to be unconstitutional, and when they did, usually it was because Parliament or a province had stepped on the other’s toes. For the most part, courts were limited in their powers and restrained in their approach, and legislative supremacy prevailed.
That changed when the Constitution Act of 1982, including the Charter, was enacted. The Charter contains the nub of a good idea: that some individual rights and freedoms are so important that not even an elected legislature may trample upon them. The Charter was a roster of liberal freedoms, meaning that they protected the autonomy of individuals from the group, as embodied by the state.
These freedoms were largely “negative” rights, meaning that they prohibited governments from interfering in people’s lives, rather than “positive” rights, which require governments to take action to provide resources, access, procedures, or the like. Under the Charter, everyone has the freedoms of conscience, religion, thought, belief, opinion, expression, assembly, and association; the right to life, liberty, and security of the person; the right to equal treatment under the law; and more. Legislatures and governments may not infringe these rights unless they are proven to be “reasonable limits” under Section 1.
But the text of the Charter is vague. What does “freedom of expression” mean? It might seem simple enough: no laws can limit what you say or write. Except that sometimes they can. If you threaten to beat up your neighbour, your statement is speech but also an assault, for which you can be prosecuted. If you falsely claim that your ex-business partner cheats on his taxes, your statement is defamatory, for which you can be sued. What the Charter appears to say in black and white is not what the Charter means, which lies somewhere in the grey. The vague text does not identify where the line is to be drawn. That task belongs to the courts, which means that courts and not legislatures are now supreme.
Had courts limited themselves to discerning, as best they could, the boundaries of rights in accordance with the original intent of the document, things might have turned out fine. Instead, since 1982 the Supreme Court of Canada has taken for itself the mandate of fashioning social policy. It has done so largely through a progressive lens, slowly transforming what was drafted as a roster of autonomy rights into a mandate for collective values and the priorities of the managerial state.
As reported in the Toronto Star, in his first press conference as the Supreme Court’s chief justice in 2018, Richard Wagner agreed that the court was “the most progressive in the world,” of which he was very proud. In an op-ed published in the Globe and Mail when she was still on the bench, Supreme Court Justice Rosalie Abella wrote that supreme courts “are the final arbiters of which contested values in society should triumph.” The Constitution is a “living tree,” the court has frequently asserted, whose meaning it can adjust in accordance with changing circumstances.
In Canada, under the court’s reign, freedom of expression does not mean that you may speak your mind, but that the state may prohibit you from “discriminating” in your speech; equality does not mean that all are subject to the same rules, but that different rules should apply to different identity groups so as to produce equal outcomes; and the Section 1 “reasonable limits” clause does not mean that rights may only be breached in extreme situations, but that governments may commit “proportional” infringements whenever the social cause is worthy (in the eyes of the court). Indeed, the court has held that government agencies are entitled to violate Charter rights if they do so in the name of equity.
Courts cannot be overruled except by higher courts and no court is higher than the Supreme Court of Canada. In February, in a Globe column condemning truckers and other Canadians for seeking freedom from vaccine mandates, former Supreme Court chief justice Beverley McLachlin suggested that the only alternative to existing “mechanisms of accountability” (meaning the courts as they presently exist) is anarchy.
The Charter’s “nothwithstanding” clause, rarely used, is no solution to all of this. The clause, which allows Parliament and provincial legislatures to get around certain Charter rights, is a last vestige of legislative supremacy in the Charter context. But legislatures are not reliable champions of freedom either, which was the point of the Charter to begin with. Checks and balances do not protect individual rights when legislatures and courts fundamentally agree that other things are more important.
No mainstream political party disapproves of the constitutional status quo. Trying to amend the Charter is a fool’s errand subject to the “7/50” formula, which requires resolutions of the House of Commons and Senate and of the legislatures of at least seven of the provinces that together have at least half the population. Even if such a prospect existed, given the current state of Canadian politics, opening the constitutional can of worms would be as likely to make things worse. Canada needs a better constitution, but getting there from here is not presently in the cards.
In retrospect, the Charter seems almost naive. Once someone else has the wheel, where they go is up to them.
The original version of this post was published on the author’s own site, and has been reprinted with permission.