How the Charter of Rights let Canada down
The document has reduced our definition of freedom to box ticking
If Canada has a sacred cow, akin to the NHS in the UK, it is the Canadian Charter of Rights and Freedoms — a constitutional bill of rights added to our constitution in 1982. As a national symbol, it is more popular than the national flag, the national anthem, and even hockey. Many Canadians can barely imagine that other, more benighted, lands might also have put some fundamental rights down in writing.
This would normally be harmless enough. Canada is after all a young nation, and nations need symbols. But the Charter, though full of admirable sentiments, has also infantilised Canadian politics and public discourse. A vague document full of broad promises coupled with important qualifications (rights are subject to limits as “can be demonstrably justified in a free and democratic society”) and exceptions (judicial interpretations of rights may be subject to legislative override under s. 33, the notwithstanding clause), it has enabled generations of Canadian judges to act as supreme legislators by interpreting it in all sorts of creative ways, striking down disfavoured legislation at a whim.
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Only a few months ago, for instance, a Canadian court ruled that it was unconstitutional to require prospective schoolteachers to pass a basic maths test — the Charter, you see, forbids this, because equality rights something-something. No policy of any importance is implemented without the courts, and usually the Supreme Court of Canada, chiming in, which suits politicians admirably because they can fob awkward issues to the judges in that way.
This is where the Canadian trucker protests come in. Earlier this week, the Trudeau government invoked the Emergencies Act to stop these protests, which have now lasted for almost two months. The Emergencies Act, which replaced the bluntly but honestly named War Measures Act in 1988, gives the power to the Governor-in-Council (in practice the Cabinet) to declare an emergency. Once an emergency is declared, the government can impose a host of drastic measures by executive fiat, subject to parliamentary review within seven days.
The measures the Canadian government have imposed make for uneasy reading, whatever your view on the trucker protests. They not only make it illegal to participate in or travel to the protests, but also to give money to any protester or to provide them with car insurance — while making it legal to freeze their bank accounts without a court order. In effect it makes it impossible for many of them to earn their livelihoods, or simply to live (Canada being such a large country, large parts of it are unliveable without an automobile, and driving legally requires car insurance). They also give the government the power to force tow truck drivers to provide their services to the government. Breach of these regulations carries a maximum of five years’ imprisonment.
The international reaction was distinctly queasy. Even outlets such as the New York Times, hardly the natural ally of protesters against Covid restrictions, saw those measures for what they were: a “temporary suspension of civil liberties”. But the Times quickly backed down after being bombarded with tweets by Canadian journalists and politicians angry with that description.
Bob Rae, Canada’s ambassador to the United Nations who was once one of Canada’s leading politicians, tweeted out the following representative gem:
But by any definition, freezing someone’s assets without due process is a violation of civil liberties. Likewise depriving people of their livelihoods or taking away people’s right to refuse to perform work for the government. You may think that these violations are justified, but that doesn’t change the fact that they are violations.
But Canadians’ grasp of the constitutional facts have been so atrophied by decades of unthinking Charter worship that many are no longer able to think about rights independently of it, to see that rights do not begin and end with a piece of paper with an impressive title. Just because the emergency decrees pay lip service to the Charter doesn’t make them any less rights-violating.
Ultimately, the best protection for rights is not any particular piece of legislation, but a robust societal consensus in their favour, as well as active thinking and discussion about their parameters. Through the Charter, Canadians have gained a constitutional guarantee for certain rights formulated in abstract terms, but may have lost much of the cultural wherewithal necessary to sustain a broader culture of rights. Would-be constitutional tinkerers in the United Kingdom and elsewhere might want to take note.
There’s a very good essay up on Spiked covering this. Apparently the civil liberties people are taking the government to court over the emergency powers:
“It’s a terrifying development for a country that calls itself a democracy to use such excessive means to quash dissent. Even going by Canada’s own laws, Trudeau’s invocation of the Emergencies Act is surely unconstitutional, as it requires a ‘national emergency’ so serious that it cannot be resolved by any other means. Trudeau has not met with the truckers even once to attempt to defuse the situation, so how could he possibly know that he couldn’t resolve the emergency any other way?”
When fascism comes to the America’s it’ll be drinking maple syrup and saying sorry too much, eh?
Curling and Poutine. In 1977 Canada did away with fire arm rights, same as every tyrant in history has done. Then in 1991, 1995, 2012, 2015, 2018, 2020, and 2021 they made it harder yet, for the law abiding to own a firearm. They also made using one almost impossible, for self defense.
They know a disarmed populace is a compliant one. Not that the citizens in modern, Western, time would ever legitimately use one to assert rights – but it is the mindset – it tells the disarmed citizens they are Wards of the State, and not Free People. And the people know it. You do not have to own a gun to be Free, but you have to have the right to, to be free.
Like the Pus *y Australians and NZ and how they were disarmed, Canadians have become a subject people, they are now clients of the state, not a free people. Like the Europeans, like the British, the right to bear arms long gone….. The water is slowly warming up and no one notices it…….
I’m sure the great majority of Australians are very satisfied with our gun laws! I don’t want a gun so I don’t have one, my brother does and has, so we’re fine, thanks.
Australia has a constitution, but not a bill of rights. But one state in Australia gave itself a Charter of Human Rights and Responsibilities, in 2006, and that is Victoria. The capital city of Victoria, Melbourne, holds the record, I believe, as the city that was locked down the longest in the world, which perhaps reinforces the author’s point.
BTW, our Premier, in Western Australia, has just announced that our state borders will be opened in a couple of weeks. After more than two years, the hermit kingdom will rejoin the world. Although I was opposed to lockdowns, mandates, and the masks we still have to wear, the Premier may well come out ahead .. having avoided the Delta variant, and now having 99% of the population vaccinated, it looks like W.A. will meet the omicron variant with little fear of many casualties!
I know many people in Britain, Australia and NZ who have firearms, they’re not banned. What they are is more tightly regulated due to the harm they can cause if used dangerously. In much the same way we make sure people are competent to drive a car before we let them behind the wheel. This isn’t done by a tyrannical government, but due to it being the wishes of a majority of the population. We all accept limits on personal freedoms in order for society to function as the alternative is anarchy. Seeing the death and destruction caused by Americas attitude to firearms I for one am glad to live in an unarmed society personally.
One final point about your weapons being used against a tyrannical government, the US army is one of the best equipped in the world, with tanks, bombs, missies etc. What do you think your pea shooter is ever going to do realistically against all that if the government ever did turn on its own citizens?
Why was it the British could buy fire arms from hardware stores pre 1917 and did not need a license?
Someone said the only example of the state in pre 1914 Britain was the postman. Orwell said the best guarantee of liberty was a rifle hanging on the wall in a workings mans home.
Because the world was a very different place in 1917 than it is today, and a rifle from 100 years ago is vastly different to the automatic weapons manufactured today.
As I say some may see it as an infringement of their liberties, but the same can be said of almost any rule or law. As a society we accept certain restrictions as we deem them to be beneficial to the population as a whole, such as the need to pass a driving test before you can drive, the controlled sale of certain substances and in some cases tight regulation on firearms. You won’t find much support amongst the majority of populations in most first world countries for copying Americas attitude to firearms, due to the damage people can cause with them.
If a majority wanted less regulation but the government wouldn’t allow it then I’d agree that it would be undemocratic, but then that party would be voted out for one more aligned to the wishes of the populace
The Mauser of the Boers proved to be very effective against the British. Many families who had worked overseas as engineers, planters, military and colonial officers, etc had everything from 0.455 Webley revolvers, 0.22 rifles, shot guns, elephant guns and rifles such as Mausers which could shoot game at 100s of yds. At Bisley there were competitions for shooting up to 1200 yds. There were even 2 bore punt guns for shooting water fowl. All without a licence pre 1917.
What is the difference, there was far more poverty in 1914 than today? Living in a squalid slum or workhouse pre 1914 and especially pre 1905, was a horrible experience.
“and a rifle from 100 years ago is vastly different to the automatic weapons manufactured today.”
There is virtually NO difference. In WWII the US had automatic rifles, the Japanese had what was basically the bolt .303. This did not confer great advantage. Both are guns – both very effective, one more convent is all.
The old .303 (I have one) is a ferocious weapon,it is deadly if used that way.
You could buy or rent a shotgun in England with no need of a Licence up until the 1st August 1968.
Moss Bros of Covent Garden were a good source for renting a shotgun in an emergency!
I dunno, America’s military has been already been defeated by Vietnamese rice farmers and Pushtun goat herders pretty comprehensively. The Cousin Eddie Militia in Boisie might be fancying their chances right about now.
That’s a good point to be fair. “All the gear, no idea” should be the motto of the American military
It is all ROE. If you make the ROE in favor of the enemy they you cannot win.
Rules of Engagement are essential, otherwise if you go around shooting civilians you’re no better than the animals you’re supposed to be stopping
No real soldier ever wants to kill civilians. Those that do are generally punished. But when the enemy uses civilians as shields some will be killed despite great effort to avoid that outcome.
The American military has never been defeated. The American politician has required the military to withdraw. In recent years the military has been hampered by extensive restrictions on combat. When those restrictions are reduced ISIS was quickly reduced.
I actually said owning guns is not to be used on ones own government in the West. It is the Right which is symbolic to freedom.
A few years before the Armenian genocide Turkey took all the guns, and that EVERY SINGLE Communist Government has as well, as did all the Fascists, and all Tyranny in history shows that it is a fact that Totalitarianism always is proceeded by fire arm removal.
I was given my first shotgun at 10, and (in UK) at 17 got my own ‘Shotgun Certificate’ in London – so I could own my own gun outright, rather than on my fathers. My Grandfather, Father, Brother were all Expert marksmen, and I could out shoot any I know but never competed as part of a team. My familiarity with guns makes me not a gun nut – I do not keep one handy, all mine now stored – they have no fascination with me, they are just tools, and sporting equipment.
I know any in UK many own a gun – BUT it requires being a member of a club or having in writing the right to shoot over some land. It is not something one can just do.
AND owing a gun in UK< AUS< NZ, and EU is NEVER ALLOWED for protection. If you said you want on for self defense you would NEVER AGAIN get the ability to own a gun. If you had lived in some of the places I have you would think different to owninging a gun – as it is a necessity to be secure. Neither of us live in those now, but they are the normal in many places, and could become so in yours.
That means it is not a right – and the citizen has NO RIGHT to self defense – and that means NO RIGHTS. In all those pu** y nations it is the right to be abused and victimized – not the right to self defense. A woman is always defenseless against a man – that is tyranny!!!!!!!!!!!!!!!
That’s also quite a rant. I don’t feel the need to own a firearm for self defence, maybe that’s because I’m not a pu**y as you so eloquently describe it.
You must be constantly fearful of the world to feel that you need a weapon to defend yourself, maybe people in those nations you insult are just braver?
Personally I’d much rather know that a pub fight or petty family argument isn’t going to end in bloodshed but that’s just me.
Our communities have been so divided. That is why guns are a problem. A fight was once a fight. An event over and done with following strict societal rules of ‘no kicking or hitting a person on the ground’ etc. People got over things and didn’t go home to get their hunting rifle to kill an adversary.
Trudeau doing this has been great – it is the wake up call of creeping totalitarianism, and it is being heard around the world. The sly, subtle ,way most rights have been removed are almost impossible to resist, they creep on, nibbling away at Freedom like rats gnawing at the Ship of State – but this cannonade of Totalitarianism is blowing up in his face, and all can see it, and realize what is going on.
But what are the risks to freedom? The vast majority of education in the state sector within cities is very poor. Within inner cities most middle ranking jobs are provided by the state which means ownership by the Democratic Party. Most universities are run by the Democratic Party. Compare the teaching of maths and science in the USA with Singapore and South East Asia and vocational training with Switzerland. The USA may have a constitution but it appears to have done nothing to prevent a very left leaning Democratic Party taking control of vast aspects of local and national government, Hollywood, Education, The Media , computer technology, and The Law. The appointment of judges by the Democratic Party in areas with the majority of the population greatly reduce freedom of choice.
The combined forces of the above have successfully made all those who oppose them to appear to be absurd relics from the past. There appears to be a lack of articulate erudite people who can oppose the present Post Modernist Marxist woke ideology. A bullet does not refute an ideology.
Almost all shootings in USA are by criminals.
The world, it feels, is becoming ever more childish.
He’s a baddie, I can do what I like to him. If I don’t get my way I’ll stamp my feet and scream. If you don’t do what I want I’ll call you bad names and tell all my friends not to talk to you. It’s not my fault, you made me do it because you weren’t nice before. I’ll hide all your toys if you don’t play my game. I’m telling, so they will put you in detention.
But these are real adults playing with real lives and livelihoods. The first step is dialogue and a willingness to accept other people have rights too, including the right to have, and state, a different view. Fair process and mutuality is needed to resolve differences, not one side with a stick, even if that stick is called ‘law’.
Trudeau – the velvet fist in an iron glove?
“Like a steely fist in an velvet glove
We don’t see what they’re made of
They shout about love
But when push comes to shove
They live for things they’re afraid of.
And the knowledge that they fear
Is a weapon to be used against them.”
-(Canadian rock band) Rush, 1982
Justin Trudeau is Canada’s Donald Trump. Son of a brilliant and highly respected law professor and the Prime Minister who’s crowning achievement was the passage of a constitutional Charter of Rights. Justin’s life was one of privilege and minor celebrity, always defined in reference to his father. He’s not very smart, goofed off for most of his life as a snowboard instructor, partier and womanizer, his highest professional achievement was to become a part time drama teacher. Never had a real job, never had responsibility of any kind, then they made him prime minister. Now is his Oedipal moment to finally step out of his father’s shadow – destroying Pierre’s legacy by removing the last pretence that Canada actually has constitutionally protected human rights.
NO – he is had his political power handed down to him from his father – not wealth. Opposite. Trump Family are non-political. All Europe and UK, and much of America have Political Dynasties, but Trump is not one of them.
Yes that is a distinction between the two of them. But is it relevant? The point is that neither of them achieved anything on their own. Try to follow along.
“This is where the Canadian trucker protests come in. Earlier this week, the Trudeau government invoked the Emergencies Act to stop these protests, which have now lasted for almost two months.”
but they haven’t, really, have they? They’ve only been in Ottawa for two weeks. That’s a lot less than two months.
No, they have been at it for a month. But it is not the issues of blocking things which are the problem making Trudeau turn Fas *ist, it is the ‘Thought Crime’ of believing they are ruled with their consent – instead of by absolute diktat. This idea must not be allowed to spread, so he is crushing it, or as his ilk would call it: “terminate with extreme prejudice”.
The idea of ‘rights’ – that there are constraints on what governments can do – is all but lost. For two years we have watched as the governments conduct polls on terrified populations and justify the infringement of any and all civil rights on the basis of popular support. So too with the Emergencies Act – it will be justified as an appropriate balance as determined by the duly elected government. Courts will not interfere – they do not have the courage to face the abuse in the media. So what then is a right? It’s nothing, an idea that started with Magna Carta and who’s popularity ebbs and flows, and today it’s only something we give lip service too. All rights and freedoms are now privileges to be removed on the flimsiest of justifications. Wake up and smell the tyranny folks.
I’m so glad the UK doesn’t have a constitution or anything similar, from the outside looking in it appears to be a massive dilution of democracy by locking in laws from a particular age and making them incredibly difficult to change. It seems to mean any law changes by the democratically elected government end up getting dragged through the courts and set by unelected judges.
I personally want parliament to be able to enact the laws it chooses, without being held up by documents from the distant past. If those laws are bad the populace can vote them out at the next election for a party that promises to repeal them
The USA Constitution is the finest civil document ever written by man.
I am so glad I liver under its guaranteed freedoms. Especially as in the coming days every one of the Bill Of Rights it guarantees in USA – are being lost in the rest of the world.
? The US is massively over policed compared to many democracies. The FBI are hugely overpowered.
It’s a Welfare scheme, by another name.
The administrative state is not really congruent with the Constitution. Agencies, like the FBI, DHS, IRS etc.are not very responsive to the three branches of government. More Americans are becoming aware of this.
What freedoms does America have that I don’t?
You live in some little gated community of a country – not in the real world though. NZ has taken all your rights – in exchange for safety. It is truly the land of the sheep.
I’ve been free to leave NZ whenever I wish, I’ve spent less time under lockdowns than most first world countries including many cities in the states. Once the current wave of the virus passes as it has every other nation then the remaining restrictions are being lifted.
You live in a country where you get fined for crossing the street without waiting for the signal. Where people sue each other because they’ve burned themselves on a hot coffee they’ve just purchased. Where you can buy automatic weapons but kids can’t buy kinder eggs because they might choke on the toy inside. Perhaps some self reflection would be wise before insulting other nations
So it is okay if the government violates your rights as long as they were democratically elected? Yet, you are always complaining about how your government acts like they can do whatever they want, whenever they want, no matter what the people think. Do you not see the connection here? If you have a political class that thinks they are above voters and can do what they want over the consideration of said voters no matter how the ballots fall, you have a problem. That is specifically why the United States Constitution is the way it is, to constrain government power no matter how enlightened the current batch of jackasses on Capitol Hill think they are. Considering how I still have rights most of the Western world have thrown away, I’m okay with that.
I don’t believe I’ve ever complained about that. If you can find some old quotes of mine that prove your point then I’ll gladly retract that statement but I doubt you can.
The government of the day passes the laws as it sees fit. If those laws are rubbish we vote in somebody else to repeal them. That’s how democracy works is it not?
Why do I need to be constrained by the views held b people who died long before I was born simply because it’s a “constitution ?”
Why are the opinions of people long dead somehow more relevant than those that are currently alive?
“. If those laws are rubbish we vote in somebody else to repeal them. That’s how democracy works is it not?”
No, that is the tyranny of the majority. The USA Civil Rights proved that. That is why only a very few Highly Middle Class countries have actual democracy rather than Representative democracy.
The USA civil rights laws came about because a majority wanted them changed, and to defend the racist segregation policies would have been electorally damaging for the parties.
American democracy is where the laws are essentially set and determined by 9 unelected and unaccountable partisan judges, how is that more democratic compared to representative democracy?
You have rights and freedoms under the Constitution for as long as a few judges say you do. And the “jackasses on Capital Hill” pick the judges. The words in the Constitution mean what a judge chooses them to mean, neither more nor less. Put not your faith in judges. If the political culture is authoritarian, a few words on a page won’t save you.
Then why are they always whining about what an impediment it is? You can be smarmy all you like. It does not change the fact I have seen it restrict government power. Yeah they are trying to get around it and trying to have judges rewrite it but if it was not there in the first place those rights would have been long gone.
Really? A party of Parliament with a majority can enact any law it chooses, including making its sitting permanent, abolishing elections, radically changing the form of government.
Interesting article, thanks. The Act’s preamble stating “clearly” that it is subject to the Charter of Rights is presumably meaningless legal waffle – assuming the Charter does actually sit legally above laws like this. Of course as the author says, the Act takes away important rights, and we will only know if the Charter actually works when the Supreme Court hears the (I hope inevitable) legal case challenging the Act. So Bob Rae is a twit.
Probably a better protection of Canadians rights will come from the (again I hope inevitable) run on any banks not able to persuade their customers that they would not comply with the ridiculous new Act! Anyway, my best wishes to Canadians trying to protect their liberty.
This Trudeau fellow appears to be a greater threat to Western Democracy than Mr Putin.
“Ultimately, the best protection for rights is not any particular piece of legislation, but a robust societal consensus in their favour, as well as active thinking and discussion about their parameters.”
I don’t think so. The best protection for rights is not a document that lists the ‘rights’ of the citizenry based on consensus. Consensus is a dangerous thing if you happen to be outside the societal norms at any given moment in history (like, say, a bunch of truckers who are actually not very popular with a lot of Canadians). Rather, the best protection for rights is a document that enumerates the limited powers of the federal government, all other powers being left to the citizens, their state (provincial) legislatures and local governments. That’s the genius of the US Constitution. The Bill of Rights was added later and was thought unnecessary by some. But, even it is worded in such a way as to state what the federal government is not allowed to do. Congress shall make no law… The US Constitution and Bill of Rights are imperfect and we have our share of federal over-reach, certainly. But, what we’re seeing in Canada is the outcome of creating lists of rights that citizens are granted, rather than specific powers a centralized federal government is allowed to exercise over a free citizenry.
Thank you for a succinct and to the point article. The invoking of the Emergencies Act is a shameful and cowardly move by the government. Freezing of bank accounts and depriving the demonstrators from making a living is an assault on liberties. No cunny words can camouflage that.
Apropos nothing the author’s Twitter account is one of the awful platform’s few redeeming attractions.
A truly brilliant article. I excerpted this gem of a quote for my collection:
Ultimately, the best protection for rights is not any particular piece of legislation, but a robust societal consensus in their favour, as well as active thinking and discussion about their parameters. Yuan Yi Zhu, Unherd
As an American, troubled by current events in our neighbor to the north, I found the description of the Charter of Rights very illuminating. I am grateful to the Founders of my country for taking the approach that “brevity is the soul of wit”. But I am grateful, above all, that they emphasized that the rights of the citizens derived from their Creator, by natural law, and were not “granted” by a government.
The first step to removing freedoms is to define them in writing. This is the danger inherent in drafting any ‘charter of rights’.
I can imagine what happens next as the truckers decide to not work. A national strike would expose some uncomfortable truth. All they wanted was for their complaints to be heard and the government refused. What comes next?
Measures to force truckers to work for/serve the government in addition to the freezing of bank accounts and so much more. This is worse than some of the ‘tyranny’ of the past. How Canada has fallen!
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