The charter that defends rights, but also tells government how to quash them

The decision was a surprise to Canadians, where any number of similar challenges had failed.

Time after time during the COVID-19 pandemic, Canadian governments imposed extraordinary public health measures that seemed to be naked infringements on Canadians’ charter rights. Mandated church closures that violated protections on “freedom of religion.” Bans on gatherings that curbed “freedom of association.” Border and travel strictures that undermined charter guarantees on mobility rights.

But the courts didn’t care. Whenever a pandemic case hit the docket, courts “erred too far on the side of deferring to government,” Joanna Baron, the executive director of the Canadian Constitution Foundation, told the National Post.

Sunday marks the 40th anniversary of Canada repatriating its constitution, a process that included passage of the Charter of Rights and Freedoms. The charter has often been praised as one of Canada’s leading modern accomplishments and its “gift to the world.” But it’s also one of the world’s only constitutions that explicitly gives the state a roadmap on how to quash the very “fundamental freedoms” it cites. It’s why, four decades in, not everyone is inclined to cheer it as a bulwark of liberty.

“I cannot think of any freedom … that the charter has brought to us,” said John Carpay, president of the Justice Centre for Constitutional Freedoms, a group that has been particularly active in challenging pandemic mandates and defending the organizers of Freedom Convoy. “We are less free today than 40 years ago,” he said.

If governments are looking to do an end-run around charter-enumerated rights, there are two primary sections of the document they turn to. Section 1, which is literally the first line of text in the charter, explicitly states that rights and freedoms are protected in Canada only to “reasonable limits.”

According to an official government of Canada guide to the charter, the purpose of this section is to remind Canadians that “rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society.”

The notwithstanding clause allows provincial governments to knowingly pass legislation that treads on a fundamental freedom.

If such a legislative override had existed in the U.S. Constitution, many of the most iconic Supreme Court decisions of the civil rights movement might not have mattered. Brown vs. Board of Education — the 1954 decision that struck down school segregation — could simply have been ignored by states invoking the notwithstanding clause.

In Quebec, it’s how provincial governments can consistently maintain legislation that are a pretty obvious curb on fundamental freedoms. Bill 21, a provincial law passed in 2019, bars government employment to any Quebecer who wears religious garb such as turbans or hijabs. Any charter challenge against Bill 21 would likely be a slam dunk on the “freedom of religion” clause, but Quebec would simply be able to soldier on with the law by invoking the notwithstanding clause.

Although the notwithstanding clause was a clear product of compromise, legislative overrides aren’t some weird Canadian anomaly. They’ve been explored in other countries — most notably Israel — to ensure a kind of emergency check over the judiciary.

The U.S. jurist Robert Bork is most famous for having his appointment to the Supreme Court rejected by the U.S. Senate in 1987. He was also a big proponent of allowing Congress to quash Supreme Court decisions in select instances.

But, apparently, Canada’s experience with the measure changed his mind. “I no longer favour making court rulings subject to legislative override, but only because Canada has found such a procedure ineffective,” Bork told the Washington Post in 1998.

On Sec. 1, it’s certainly strange that Canada would begin its charter with an admission of its limits, but in doing so Canada is simply articulating a fact that is common to all the other Western constitutions.

“Our courts have sometimes been wishy washy, not on rights but on how deferential they are to government objectives on a case-by-case basis,” said Emmett Macfarlane, a constitutional scholar at the University of Waterloo. “But what is untrue is the idea that other countries have absolute rights.”

The U.S. constitution, for one, certainly uses absolutist language when it comes to the issue of free speech, gun rights or peaceable assembly. The famed First Amendment says only “Congress shall make no law … abridging the freedom of speech.” But Macfarlane notes this provision still comes with a whole bunch of court-tested asterisks, including laws against perjury and defamation.

“In Canada, these laws would be upheld as ‘reasonable limits’ …  whereas in the U.S. they are treated as either protected or not,” he said.

Before the charter, Canadian courts didn’t really adjudicate civil liberties cases. Their job was mostly to figure out “legislative jurisdiction between the co-existing levels of government,” in the words of one 1983 legal paper.

If a Canadian found themselves a victim of potential discrimination, their only real recourse was the political process. Carpay provided the example of a Canadian city hall denying an application for a peaceful protest simply because they didn’t like the group making the application. Unless the municipality had some specific law barring arbitrary rejections, the only real recourse was through the political process.

And it’s in enshrining new legal rights that the charter shines. It was charter decisions by the Supreme Court that ultimately legalized both abortion and medically assisted death. Charter cases kickstarted Canadian legal equality for gays and lesbians, starting with the 1995 case Egan v. Canada. Police powers have been curbed and the rights of the criminally accused have been more clearly defined by charter challenges.

Where its record isn’t as stellar is arguably on the “freedom” side of the ledger. When a Canadian heads to court seeking to be left alone by government, the charter isn’t as keenly on their side.

This is most noticeable in the area of Canadian hate speech laws, which have survived charter challenges. While hate speech curbs aren’t unusual in Europe, in Canada they contrast sharply to conditions just south of the border, where virtually all speech is protected unless it’s directly seeking to incite violence.

In 2008, the author Mark Steyn was subject to a B.C. Human Rights Tribunal case over a book excerpt in Macleans in which he had argued that Islam threatens Western civilization. Although the case ultimately failed, The New York Times, tellingly, covered the case with the headline “Unlike Others, U.S. Defends Freedom to Offend in Speech.”

The acid test of a national constitution is its ability to protect unpopular rights. Any bill of rights — from France’s Declaration of the Rights of Man to the UN Declaration of Human Rights — is inherently an undemocratic document. The idea is to enshrine a framework of core values that will be upheld even if 51 per cent of the population feels like ignoring them.

And in this, the Charter of Rights and Freedoms does have two major cases to its credit. One involves an accused pedophile, the other a Holocaust denier.

Ernst Zundel distributed a pamphlet denying the basic details of the Holocaust, earning him a charge under a criminal code provision that banned Canadians from publishing “a statement, tale or news that the person knew was false.” But the Supreme Court ultimately ruled that freedom of expression should extend even to lies and falsehoods.

In the 2001 case R. v. Sharpe, the Supreme Court upheld prohibitions on content that victimized children, but ultimately ruled that freedom of expression extended to pedophilic content that were “works of the imagination.” A Canadian was deemed free to draw pictures and write stories depicting the sexual exploitation of children, as justices determined that banning the practice veered too far in the direction of attempting to control citizens’ thoughts.

Although Carpay’s job is to litigate cases based on the written technicalities of Canada’s charter, he said that whatever its wording, any national constitution is ultimately only ever as strong as a population’s will to uphold it.

He pointed to constitutions in totalitarian countries such as China and the former Soviet Union. Both contain high-flying rhetoric about personal freedoms, but were passed by governments who never had any intention of upholding them.

The Soviet constitution guaranteed its citizens “freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations.” The Chinese constitution pledges “freedom of speech” and even “freedom of religious belief.”

Canada’s charter is far less triumphalist than either of these two documents, but has ultimately proved a far better bulwark of human rights in large part because it’s in the hands of people who believe in it.

Said Carpay, “the only sure guarantor of a free society is when the overwhelming majority of citizens cherish these fundamental freedoms and are willing to sacrifice and suffer to defend them.”