This was originally written more than three years ago now, but I am fond of the text. I thought I would repost it tomorrow, on the Charter‘s 30th anniversary, but decided to do it today. Hopefully I’ll come up with something more celebratory tomorrow.
I am a proud Charter child. A copy of the Charter is hanging in my room; right above my bed in fact. Every night I fall asleep secure in the knowledge that “the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” You might I’m really taking too far – or even that I’m nuts. You can even tell me this in so many words. That’s fine. “Everyone has the following fundamental freedoms: freedom of thought, belief, opinion, and expression.” But the Charter, according to our Chief Justice, belongs to the people, so it belongs to me too. I’m not the fat old lady, or the gentleman wearing some sort of cross between a Chinese hat and a sombrero, or a kid playing hockey, or any other character gracing my copy of the Charter. But collectively, they all are me. So why is that that I have been having the Charter blues?
The first false notes crept into my hymns of praise to the Charter after reading the Supreme Court’s decision in National Bank of Canada v. Retail Clerks’ International Union ( 1 S.C.R. 269). One of the issues there was whether an arbitrator had the power to force the bank’s president to sign a letter to employees of which the arbitrator stipulated the contents. The Charter did not yet apply in that case, but although the court unanimously decided the case on another ground, five justices also signed a concurring opinion by Beetz J, who argued that “[t]his type of penalty is totalitarian and as such alien to the tradition of free nations like Canada.”
I already had read the Court’s decision in Slaight Communications v. Davidson ( 1 S.C.R. 1038), rendered five short years after that in National Bank. Slaight too dealt with an arbitrator’s decision forcing a company to provide a letter of which the arbitrator stipulated the contents. Justice Beetz duly quoted his opinion in National Bank, and wrote that “to order the affirmation of facts, apart from belief in their veracity by the person who is ordered to affirm them, constitutes a … serious violation of the freedoms of opinion and expression … [S]uch a violation is totalitarian in nature and can never be justified under s. 1 of the Charter. It does not differ, essentially, from the command given to Galileo by the Inquisition to abjure the cosmology of Copernicus.” The trouble is, Justice Beetz was dissenting and alone. A six-judge majority – including Justice Wilson, who had agreed with Justice Beetz in National Bank – found that although the arbitrator’s order was indeed a restriction of the freedom of expression, it was justified under s.1 of the Charter.
Whatever the individual merits of the decisions in National Bank and in Slaight, what is disquieting is the fact that the enactment of the Charter, and specifically of its s.1, has weakened, not strengthened, the protection for freedom of expression in Canada. It is possible to think – though I do not – that this protection was too extensive after the National Bank decision. But the Charter guarantees the rights and freedoms set out in it. Surely, it does not diminish them? Can I still sleep soundly?
The second time dissonance unceremoniously burst in my songs to the Charter was when I started reading up on the subject of defamation. It now seems to me that although the Charter might have undermined the solidity of the rights it claims to protect in situations when these rights clash against “pressing and substantial” legislative concerns, it may also make them rather too rigid in cases where they clash not with the state, but with other rights that we as individuals hold. The dominance of the Charter over our discourse about rights makes us forget that such rights even exist, and ought to be protected by law if not necessarily by the constitution.
That, at least, was the impression I got from reading Justice Cory’s unconvincing attempts in Hill v. Church of Scientology of Toronto, ( 2 S.C.R. 1130) to link the right to reputation, to “innate dignity,” to democracy, and to privacy – in short, gasping at constitutional straws – to explain the restrictions it justifies on freedom of speech in the defamation context. The common law has recognised and protected our right to a reputation not worse than our actual deeds warrant for centuries. It was not enshrined in the Charter, I believe, for this excellent reason that state action, to which the Charter applies, is unlikely ever to diminish a person’s reputation. But this should not mean that this right is somehow less important, in interactions between private parties, than those which the Charter does protect as against the state, or that its existence must be justified by tenuous connections to such rights.
The right to reputation is not alone in being in danger of oblivion because of our obsession with constitutional rights at the detriment all others. So is the good old freedom of contract. So might perhaps be the right to property. It is a dangerous thing to make predictions, especially about the future. Alas, the exhortation in s. 26 of the Charter that “[t]he guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada” seems destined never to be read as an order, but as one of those predictions about the future that should never have been made.
Still, I thought, the Charter’s importance in our discourse is understandable, if the Charter belongs to the people, and it need not be all bad for it is surely better to be aware of some of our rights at least than none at all. But newfound cynicism is now creeping into my love for the Charter as a people-power instrument too. For the Charter, and similar enactments abroad, to serve people power, the people and their elected representatives must themselves make efforts at interpreting and implementing it. Though I never was much of a believer in people power, a recent event has dented what little faith I had in this high-minded ideal.
Among the usual EU agitprop I see every day on Euronews, I was recently treated to what at first sight seemed an unusual demonstration of concern for constitutional rights by an elected politician. The Spanish education minister was arguing (almost) passionately that removing crucifixes from classrooms was what the spirit of the constitutional separation between church and state mandated. But before I could get too excited at the sight of this representative of the people engaging in constitutional interpretation, the presenter brought me down to earth. The minister was only commenting on a court decision ordering the removal of crucifixes, and her courageous engagement with the constitution was nothing more than a rehashing of the court’s arguments. Although this was happening in Spain, not in Canada, we have already seen something rather similar with the same-sex marriage debate here: a government that postures, maybe even sincerely, as an active promoter of rights… but relies on courts to tell it what these are.
If the Charter belongs to the people, then they and their representatives must strive to implement the rights it protects. They certainly don’t have to wait for courts to tell them what rights are. Courts only say what the minimum requirements of the Charter are. If we want to live in a society freer than that in which only those minimum requirements prevail, nothing prevents us from doing so – nothing, except our apathy. Many of our laws and of the practices of our governments, no doubt, are less restrictive than what the courts interpreting the Charter would tolerate; but I am equally certain that in many ways, they could more respectful still of our freedoms, both those that are enshrined in the Charter, and of those that are not.
Still, I think it is true that the Charter belongs to us. And it is therefore up to us to make what we choose of it. Hanging it on a wall might be a good beginning, but it cannot be more than that. If we let the Charter become a mere icon, or worse, a licence for the government to curtail our rights more than it protects and upholds them, or if we let the Charter’s shining glow to drown out the weaker lights of rights perhaps both more ancient and greater, though more distant, we will only have ourselves to blame.
Well, that was three years ago. I have since moved more times than I care to count, and there is no Charter hanging above my bed now, though there is a big poster of Pierre Trudeau in my room. And it’s been a while since I’ve last watched Euronews. But apart from that, not very much has changed.