WITH the stroke of a pen, the Canadian Charter of Rights and Freedoms became part of the Canadian constitution 25 years ago, on April 17, 1982.

Don Hutchinson, legal counsel for the Evangelical Fellowship of Canada, told BCCN the Charter “has affected every area of Canadian law” and “has fundamentally changed the way we approach law.”

Hutchinson noted that the Charter came forward at the same time as a massive parallel cultural change, although it is probably too simplistic to suggest that one “caused” the other. Fundamentally, instead of defining themselves in terms of the groupings they belong to, Canadians have become much more individualistic. Many Canadians’ attitudes now begin with “What are my rights?”

Political scientist John Redekop told BCCN  that while there were some good aspects to the Charter, the great weakness is that it has shifted the focus “from the British emphasis on collective well-being to the American emphasis on individual well-being.”

The result is that the courts have “bent over backwards to protect a narrow band of minority and individual rights” but the Charter “has not improved the climate of freedom for large segments of society.”

He noted, for instance, the mayors and other individuals who have been forced by court decisions on the Charter to declare support for homosexuality.

Redekop said the British have never had such a charter but historically have a better record of providing freedoms, guaranteed by both tradition and the courts. In that sense, the Charter is undemocratic in that it does not trust legislatures to protect rights.

The other key change, said Hutchinson, is that Canadians “have grown accustomed to accepting that the courts know best.” He said this was true before the Charter, but then “Canadians expected government to act if it disagreed with a court decision.” Now “Canadians expect the courts to act if they disagree with a government decision.”

Section 33 of the Charter (the ‘notwithstanding clause’) recognizes the traditional right of parliamentary government to overrule a law.

Redekop stated that legislation overruling court decisions was quite common before 1982. However, the notwithstanding clause “has been given such a negative view by the Liberal Party and the courts” that in practice it can hardly be used now.

The problem with this, he said, is that it gives judges far too much power. He said judges have essentially been appointed on “the whim of a prime minister,” based on “a phone call late at night. Judges aren’t accountable, and there is no clear removal procedure. The personal preferences of judges are given very much weight.”

Hutchinson said the Supreme Court has also tended to see the Charter not as “a document frozen in time” but as “a living tree” that “has a life of its own and is continuing to evolve.”

Hutchinson said that the Charter was based on a combination of the Canadian history of recognizing rights, a number of UN declarations of rights, and Prime Minister Pierre Trudeau’s Jesuit upbringing.

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Prime Minister Pierre Trudeau looks on as Queen Elizabeth II signs the Charter.

Hutchinson said all three have strong ties to a Christian heritage: “In the Catholic tradition, all rights are derived from God, and the most significant right is freedom of religion.”

Redekop, however, stated that the only Christian influence is really in the preamble, which recognizes that “Canada is founded upon principles that recognize the supremacy of God and the rule of law,” a preamble that has largely been ignored in practice.

Hutchinson said the Charter has fulfilled initial expectations in that it “has benefitted religious rights in a number of ways.” However, it has tended to “tie those rights to the individual” and left “corporate religious expression with a certain amount of legal uncertainty.” The courts have used the Charter to protect private religious belief but have been less supportive of “the corporate expression of religious belief in the public arena.”

Redekop stated that when the Charter was first proposed, another political scientist told him that Christians would be foolish to support it because “this will work against you.” Redekop stated, “I didn’t believe it at the time, but he was right.”

Hutchinson said that “to some degree, we Christians have neglected our rights” under the Charter. That is, Christian individuals and groups have often been more reluctant than some other groups to pursue their Charter rights through the courts. They are misinformed about their rights, don’t take their faith seriously enough, or don’t see it as important enough for the time and money it would require.

Redekop stated that one of the biggest problems is that the Liberal Party had appointed “very left-leaning, anti-Christian judges. If the rulings had been fairer, the Charter wouldn’t have been so consequential.” He added that “political decisions then reinforced the bias of the courts.”

Asked whether the Charter has been good or bad for Canada, Hutchinson said that is no longer a relevant question since the Charter is part of the constitution. He said some Canadians almost worship the Charter and some Canadians loathe it, but neither attitude is helpful. Instead, Canadian Christians should focus on understanding the Charter and learning how it can benefit them.

Redekop was more direct: “On balance, the Charter has not been good for Canada.”

– Jim Coggins

June 2007