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Harper Shrugs Off Charter Celebrations

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Can a single constitutional document change the evolution of a society? I would argue that happened with the Canadian people when the Canadian Charter of Rights and Freedoms was signed on April 17, 1982 by the Queen on Parliament Hill. On April 17, 2012, we should all be celebrating the 30th Anniversary of this historic document.

The architect of the Charter, Pierre Trudeau and his party, which included 72 of the 75 MPs from Quebec, hoped that the Charter would produce a common citizenship that would unite French and English Canadians together with the many communities that make up the Canadian multicultural mosaic. Trudeau had also hoped that Canada would be brought into the mainstream of nations that had entrenched fundamental rights, and freedoms to prevent the unbridled power of democratic majorities as he had witnessed in Quebec under the regime of Premier Duplessis.

However, the final version of the Charter was also the product of desires of the political mosaic of women's groups, aboriginal groups, ethnocultural groups, linguistic minorities, and other equality seeking people demanding to see their own identities, and rights recognized in the Charter.

The Charter itself was a unique reconciliation of the principle of majority rule, and the protection of the fundamental rights and freedoms of all its citizens. This was achieved by the first section of the Charter which stated that rights can be subject to reasonable limits that can demonstrably justified in a free, and democratic society.

Second the "notwithstanding clause" of the Charter allows legislatures to override rights in extreme situations, and there has rightly been great political restraint in the use of this safety valve. This reconciliation of the Supremacy of Parliament with the fundamental rights of Canadians is at the core of the transformation of the country and its people.

30 years on, the reconciliation has seen good and bad times, but the transformation continues more quietly than before. The Charter is viewed as one of the most critical aspects of Canadian democracy in several reputable opinion polls. This is the case even in Quebec, where the hard core separatists still push the myth that Quebecers never agreed to it. While Canadians may not know the details of the Charter, they know that it stands as a bulwark against the tyranny of the majority.

The main role of that bulwark is performed by the Supreme Court of Canada that has been guided by the ancient values of proportionality, and contextual justice. Using those ancient measures of justice, the first post Charter Court lead by Chief Justice Brian Dickson rejected timid interpretations of the Charter. It upheld the hate propaganda law to ensure the equal citizenship of those minorities in our multicultural society.

The Court also extended the protection of the Charter to refugee claimants, and struck down the law on abortion. It also ruled that the collective linguistic rights of Quebecers under Bill 101 could not totally eliminate individual freedom of expression. Outside the strict limits of the Charter, the Court also recognized, and strengthened existing understanding of aboriginal rights.

The Supreme Courts that followed had to deal with allegations of improper judicial activism from those who failed to understand the purpose of an entrenched Charter, and insisted that majority values, and morals would trump rights. There followed criticism of the Court's inclusion of sexual orientation, and same sex marriage in the Charter's equality guarantee, along with upholding the fundamental rights of the accused in the criminal justice process and the rights of some prisoners to vote.

This unjustified criticism may have lead to excessive judicial deference by the top court leading to criticism of it by progressive voices. Much lambasted have been the decisions to allow a government to annul retroactively millions in pay equity to female workers, the refusal to consider social, and economic rights as part of the Charter, limiting some aspects of rights sought by trade unions, and more recently starting to limit the scope of exemption, and rights sought by religious groups.

Accompanying this deference is a paradoxical inconsistency in the general acceptance by the courts that it is not the role of the courts to second guess legislatures regarding economic, social, and national security policies. On one hand, the Court seems to accept that Parliament can pass seemingly draconian national security laws that, with limited protections, can allow for draconian measures, and closed hearings against terrorist suspects. However, the Court, by a slim majority has also struck down a Quebec law that prohibited access to private medical insurance for publicly available health care. This ruling may well usher in a two tier health system in Canada. More recently, the Court, in a very measured way, has also ordered the government to provide an exemption for the harm reduction drug treatment work of the health clinic Insite in Vancouver.

This inconsistency may well be the nature of judicial review of the actions of government in the next 30 years. While on a socio-political level, the Charter has accomplished Trudeau's vision of a Pan-Canadian commitment to the reconciliation of rule by the majority with the protection of fundamental rights, and freedoms. The balance between the two will be severely tested if there continues to be a majority government that does not seem to share the enthusiasm for the Charter. This is most evident by the fact that the Harper administration chose not to have any official commemoration of the 30th anniversary.

While many parts of society may demand that the Charter protect individuals, groups, and minorities who are most vulnerable to be used in wedge politics such as the poor, refugees, sexual minorities, unions, and aboriginal peoples, majority governments may try to frame their demands as undermining social, and economic progress of the country. It will be up to the wisdom of the moderate majority in the country to decide who wins in the pitched battle between wedge politics, and the need to reconcile the will of the majority with fundamental rights, and freedoms. In the face of such challenges, those who fought to have the Charter become part of the fabric of Canadian society must fight to ensure the original vision does not weaken because it speaks to the nobility of the Canadian spirit, and of all Canadians.