April 17 will mark the 40th anniversary of the Canadian Charter of Rights and Freedoms. How fares our modern Magna Carta in middle age? I’d say it’s quite…
When the charter was summoned into being as part of the 1982 Constitution Act, it was destined to spend the next couple of decades being given the continual stinkeye by conservative Canadians, or just the many who fear and loathe the Liberal party. A bill of justiciable rights was bound to make criminal justice more inefficient, more expensive, and more sluggish. Some evildoers of the most vomitous kind were bound to elude justice because of abstract due-process technicalities.
Some conservative critics expressed fears that the charter would obscure or overwrite the memory of our older legacy of civil liberties, and this, too, has arguably happened. The charter is sometimes treated implicitly as the fountainhead of all individual rights in Canada: the foregoing 800 years of legal evolution are a blur. Up until the moment the Queen’s fancy fountain pen touched the Constitution Act, we were little better than slaves awaiting emancipation.
The charter was certainly a leap away from the Westminster model of government and toward the American one, and many observers see us wandering slowly down the road toward American-style politicization of the judiciary. Other critics of various political stripe were concerned that a legal apparatus incorporating reciprocal duties was being replaced by a cold grocery list of simple restrictions on the state.
Apologies for the long quote, but I think that paragraph might accidentally be the most glorious defence the Charter of Rights and Freedoms has yet received. The professor was not wrong: the Charter, by design, does embody the classical spirit of “negative liberty,” and has probably had some neoliberalizing or libertarianizing effect on our politics.
Conservatives in the broadest sense had these reasons to be suspicious of the charter, these and many more. Yet, over time, the charter has become the idol of the populist right in Canada, and COVID has proven it. You can tell from the complaints that the truck-driving and anti-vaccine crowd have been
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