On the 40th anniversary of the charter, a battle for the very soul of our country
Long before the charter, jurists such as Ivan Rand had recognized that certain freedoms were also the essential precondition of constitutional government. When deciding the case of Switzman v. Elbling at the Supreme Court of Canada in 1957, Rand opined on the subject of freedom of speech: “Liberty in this is little less vital to man’s mind and spirit than breathing is to physical existence. As such an inherence in the individual it is embodied in his status of his citizenship.
Initially, the fear of a transition to judicial supremacy animated most critics of the charter. This was allayed by the demonstration of the truth of constitutional supremacy: Canada’s judges have shown time and time again that they remain true to their oath to impartially administer justice as the constitution requires, and not as they would have it.
Some believe that the purpose of a democratic society is to achieve social justice, which requires a more equitable distribution of social goods that includes not only material resources, but appointments to positions of influence or even gainful employment, along with more intangible provisions, such as public recognition and respect for one’s dignity, identity and life choices.
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