“In the war of every man against every man, the strong do what they want, the weak what they can.”
“Each of us is a ‘human personality’—beings of a moral order—free and equal among ourselves and each possessing absolute dignity and infinite value. We all partake in the essence of universal humanity and are not coercible by, nor vassals to, any ancestral tradition, race, religion, condition of birth nor to collective history.”
~ Jacques Maritan
“It is wrong to pretend that the existence of the Charter is in contradiction with the supremacy of Parliament. The Charter does not leave matters entirely to the wisdom of judges. The onus remains with the people’s representatives.”
~ Pierre Elliot Trudeau
During this election we witnessed much consternation and confusion over the Charter of Rights and Freedoms. It is important to examine why. For if there is one defining concept of what we are as a nation it is the Charter. And if there is one demonstrative construct that illustrates the conflicting visions and inherent flaws of this land it is the Charter as well. The irony is that the Charter could have been, and should have been, the common ground of small-c conservatives and small-l liberals alike.
If there is anything a conservative seeks to conserve it is that body of natural liberties that have not been, or should not be, ceded to the state in return for the bounty received from it. The essence of a conservative approach has always been the contention that though the organization of a commonweal is essential for the delivery of needed resources and services to weather the elements and insecurities of life that even the most powerful among us face, the definition of those resources and services, delivered through the state, should be limited to the essentials.
We would all, as individuals, benefit from common defense, legal protection, agriculture, care and education in order to reach our full potential as human beings. We would have the freedom and leisure for our individual pursuits of poetry and passion. But the state would not be bound to finance those pursuits and turn society into a grand collectivist experiment in quality of life.
Traditionally, liberals have taken a different view. Many of the approaches of industrial liberalism, in particular over the past fifty years, have supported the proposition that the highest and best use of the state’s time, talent and treasure was not only to provide the opportunity for the maximum fulfillment of individual human potential, but that this potential be realized within a framework of imperatives that guided us to common societal affects and that the role of government was not only to delineate and define those affects but to provide their constructs and contours as well.
Social engineering as statist faith became fashionable and increasingly seen as central to “progressive” government doctrine. Not only were we to protect, feed, educate and care for our citizens, but we would legislate and regulate programs to create a national culture of co-operation and compassion. Individual expression was to be moderated and sublimated to the greatest good for the greatest number.
The conservative felt that this new agenda had to be tempered by prudence and by the lessons of experience. The liberal had implicit faith in the common sense of the broad populace and the notion that today’s experiment trumped yesterday’s experience.
Both, however, staked their competing claims on the sanctity of the individual over the state and the sovereignty of our democratic suffrage over any special considerations to privilege or preference.
The genius of the Charter is that it protected these foundational principles from the fleeting fancies of political fashion.
But there was a flaw. Political pressure forced extension of Charter protections beyond classic individual rights to include linguistic, cultural and other minority groups. Political compromise forced inclusion of the derogatory, or “notwithstanding”, clause as a counterweight. And so the problems began that bedevil us until today.
In the typically Canadian attempt to interpret and satisfy the wants of many, while upsetting none, sight was lost of one incontrovertible truth…a group cannot contract with the commonweal. A collective has no inherent rights to cede to the state. Only the individual is possessed of those natural liberties that form the currency of a social contract. Only the individual can claim the legitimacy of inalienable rights. This truth has been recognized for hundreds of years. It is the essence of what Nehru called the “golden thread” of freedom that began with the French Declaration of the Rights of Man in 1789 and the American Bill of Rights in 1791.
By recognising the “rights” of collectives in the Charter we unleashed torrents of demands for “entitlements” by competing groups. This quickly led to the growth of staggering numbers of government programs run by a leviathan of bureaucrats financed by suffocatingly higher levels of taxation. It also made conflicts over the notwithstanding provision of Section 33 of the Charter inevitable as many groups sought political gain by constant challenges to expand the scope of the collective provisions. It need not have been so.
The just society that values co-operation over competition and compassion over contempt, that all of good will seek to build, is not predicated on the satisfaction of the cacophony of competing claims of Canada’s “mosaic”. These can never be satisfied. It is an exercise in futility from the outset. And a dangerously naïve one for it ignores the political reality that as soon as something is given to any group on the basis of entitlement, every other group will demand the same and more. It is a never-ending spiral and a recipe for ruin.
The Charter’s inclusion of collective rights weakened the emphasis on individual rights. With each passing year we have compromised the importance of the latter by accepting the satisfaction of the former in either financial terms or through continuously expanding inclusionary definitions. The debasement of the Charter as an instrument of fundamental social reformation continues unabated as many Canadians retreat into the complacency of smug orthodoxies in return for government largesse and capitulation to their special interests.
The Charter was created with more purposeful intent. As with all such great documents over the past two hundred years, it was meant to empower and enfranchise all citizens. To help reverse Thucydides’ admonition that reigned true for millennia that “In the war of every man against every man, the strong do what they want, the weak what they can.” In its individual protections it established the primacy of each Canadian over the state and all government institutions. It thus provided the strongest surety of the sovereignty of our suffrage.
The adoption of the Charter manifested eloquent Canadian fidelity to the proposition that we are all full members of civil society, endowed with certain fundamental inalienable rights that cannot be abrogated or abridged. Prime Minister Trudeau often commented that he hoped the Charter reflected Jacques Maritan’s view that “Each of us is a ‘human personality’—beings of a moral order—free and equal among ourselves and each possessing absolute dignity and infinite value. We all partake in the essence of universal humanity and are not coercible by, nor vassals to, any ancestral tradition, race, religion, condition of birth nor to collective history.”
With the alarming increase of abuse of authority by government at all levels, it has never been more important to re-assert the paramountcy of the Charter provisions that protect and preserve our historically inalienable individual freedoms. This must be the Charter’s primary role—even if it means Parliamentary amendments to limit the breadth of the collectivist provisions of the Charter. The ability of Parliament, not the courts, to do this has already been provided for in Section 1 of the Charter itself.
Trudeau himself has written that he viewed this provision as making the Canadian Charter superior to others in that it clearly places the onus on amending, expanding or restricting the Charter squarely on legislators responsible to the public and not on appointed officials of the judiciary. Besides relieving the courts of the administrative burden, he argued that it was important not to contradict the supremacy of Parliament and never to replace the role of the people’s representatives with judges appointed for life.
Trudeau felt that the authority of the lawmakers should “…always prevail over the Charter and even over judges…” and that this was the intent of Section 1 as well when it speaks of a “…free and democratic society…”. To guarantee this, sovereignty must belong to the people and be manifested through the broadest possible latitude for their democratically elected representatives.
Trudeau’s opposition to the notwithstanding provision of Section 33 arose not from the fact that it’s derogatory option would be exercised by the chief provincial legislator—namely the Premier of each province---but that it gave the Premiers the power to exercise that function in “…a purely arbitrary fashion…” providing for no obligation on their part to consult their legislatures and thereby involve the full body of elected representatives of the people.
Though there is sufficient evidence to moot any debate that the inclusionary power over the Charter rests with the legislature and the interpretive power with the judiciary, we have seen constant and contentious debate on this point. Many of the arguments come from those who advocate the continued expansion and entrenchment of collectivist rights as the primordial function of the Charter. They are wrong.
Only in the protection of individual diversity can we preserve our national spirit. Only in the protection of individual expression can we preserve our national voice. And only in the protection of individual conscience can we preserve our national will.