Aside from the 150th anniversary of Canadian Confederation, 2017 was also the 35th anniversary of the Canadian Charter of Rights and Freedoms. The Charter, since arriving in 1982, has brought about fundamental changes to Canadian society.
There has been a sustained focus since 1982 on defining the content of Charter rights and freedoms. Given their open-ended articulation, many of these rights and freedoms – such as freedom of religion, equality, and liberty – require interpretation.
There has been far less focus since 1982 on the Charter’s mission. What, in other words, is the reason for a constitutional bill of rights? Without a firm grip on the answer to that question, there is a risk that the State will invoke the Charter to justify actions that undermine its raison d’être.
The mission of a bill of rights such as the Charter is to shield citizens from actions of the State that violate human dignity. In a perfect world, the shield is not needed: the State would respect human dignity by default. Yet both the past and present reveal that the power of the State can be exercised in ways that profoundly disrespect the intrinsic dignity of human beings.
The idea of the Charter gained traction after the Second World War. The atrocities of that conflict spurred postwar entities such as the United Nations to codify international commitments to basic human rights. The 1948 Universal Declaration of Human Rights inspired the pursuit and adoption of constitutional bills of rights in Canada and other countries.
Pierre Trudeau was Prime Minister when the Charter – his brainchild – arrived in 1982, but the idea of the Charter took shape in Trudeau’s mind decades earlier. As a young intellectual, Trudeau criticized the authoritarianism of Maurice Duplessis, the Premier of Quebec from 1936-39 and 1944-59. Roy McMurtry, Ontario’s Attorney General when the Charter arrived, explains why Trudeau’s vision of the Charter “was significantly influenced by the Duplessis years.”
"Premier Maurice Duplessis had presided over an authoritarian, corrupt and nationalist regime that had held Quebec back from general postwar development," McMurtry said. "His government sacrificed the rule of law to political ends, denied freedom of speech to critics and non-conformists, denied freedom of association to those battling for economic rights against big business and denied religious freedom to Jehovah’s Witnesses."
The relentless persecution of Jehovah’s Witnesses in Quebec by Duplessis was, for Trudeau, “one of his motivations” for pursuing a constitutional bill of rights for Canada.
Fast forwarding to 1968, Pierre Trudeau – now Minister of Justice – published the first draft of the Charter. The draft includes his reflections on the age-old pursuit of human rights, which he notes were once called natural rights. Many would agree that certain Charter rights and freedoms are not legal constructs but natural realities that predate and transcend the State. Whether natural or man-made, their purpose is the same: to shield human dignity and individual liberty from State interference and thereby ensure societal conditions that promote human flourishing.
Fifty years later, in 2018, Pierre Trudeau’s son is Prime Minister. Like his father, Justin Trudeau professes reverence for the Charter. It appears, however, that he is willing to deliberately distort the Charter’s mission in order to impose his contestable moral judgments on all Canadians.
On the issue of abortion, the evidence is compelling. Since becoming Leader of the Liberal Party in 2013, Trudeau has imposed his view that abortion is a Charter right – and the inextricable judgment that abortion is moral or at least morally neutral – in several contexts. The latest one is Canada Summer Jobs, a federal program that subsidizes summer jobs for students. This year, organizations that wish to apply for funding must endorse access to abortion as a Charter value and human right – an unthinkable act if the organization considers abortion to be immoral.
Trudeau describes groups that advocate against abortion as “not in line” with “where we are as a society”. Regardless of your position in the abortion debate (and studies show that it remains a live debate in Canada), Trudeau is sending the chilling message that individuals who oppose abortion are less Canadian. This kind of rhetoric is pernicious. It is often a precursor to the violation – rather than the vindication – of individual liberty and human dignity.
It is troubling to see the Charter, which exists to shield Canadians from the power of the State, being deployed by a Prime Minister to declare State orthodoxy on a contestable moral issue, deride those who disagree, and imply that they do not belong in Canada.
In this case, the Prime Minister is sabotaging the mission of the Charter. As one judge put it, the Charter’s purpose is “to protect the citizen from the power of the State, not to enforce compliance by citizens or private institutions with the moral judgments of the State.” The Charter, in other words, is “not a blueprint for moral conformity.”
Pierre Trudeau would applaud these statements. In his memoirs, he described the Charter “as an expression of my long-held view that the subject of law must be the individual human being; the law must permit the individual to fulfill himself or herself to the utmost.” For that reason, “the individual has certain basic rights that cannot be taken away by any government.”
As for Justin Trudeau, “like father, like son” does not apply here. While the Prime Minister portrays himself as a champion of the Charter, the contrast between father and son – between Charter architect and present-day steward – suggests that the Charter’s mission has faded out of view. As the Canada Summer Jobs fiasco reveals, this blind spot can open the door to the State using the Charter for illiberal and intolerant – anti-Charter – objectives.
The Prime Minister must safeguard, rather than threaten, the Charter’s mission. While Canada adopted the Charter to prevent authoritarianism, the Summer Jobs debacle illustrates that the Charter, if abused, can also enable it.
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