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Irwin Cotler

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Does Harper Wish the Charter Was Never Born?

Posted: 04/17/2012 9:54 am

Thirty years ago today, the Canadian Charter of Rights and Freedoms came into being ushering in what former Supreme Court Chief Justice Antonio Lamer called ''a revolution in law comparable to the discovery of Pasteur in science.'' Indeed, the Charter has since had a transformative impact not only on our laws, but on our lives; not only on how we litigate, but on how we live. Simply put, Canadians now enjoy a panoply of rights and remedies that were inconceivable prior to the Charter.

In particular, pre-Charter life and law was often a disturbing narrative of discrimination against, and marginalization of, vulnerable groups, including discrimination against aboriginal people, against racial and religious minorities, against women, against the disabled, against gays and lesbians, and the like.

The ''Charter Revolution'' also found initial expression in the unprecedented parliamentary and civil society process of its adoption -- itself a "democracy revolution in rights terms," as I referred to it at the time -- whereby many of these historically marginalized groups, appearing before the Joint House Senate Committee hearings on the proposed Charter, became the founding partners in the drafting of the Charter itself -- the "People's Package," as it was characterized at the time.

If, 30 years later, you go about Canada and ask these Canadians if their rights are better protected now than they were then, the answer will invariably be "Yes." They will, rightfully, add that much still needs to be done to make Canada a more just and inclusive society -- be it in access to justice, gender equity, or aboriginal justice. But they will still speak of the Charter as the icon of our Canadian political identity, as public opinion polls themselves demonstrate.

And yet, we might say that on its 30th anniversary, we find ourselves in a Dickensonian Charter moment -- the best of times for the Charter in global constitutionalism terms, but a worrisome one in Canadian terms.

On the one hand, we are currently bearing witness to a significant rise in the international prestige of the Charter, as evidenced by a leading article in the forthcoming June 2012 New York University Law Review, which concludes that Canada has supplanted the U.S. as the leading exporter and exemplar of a global rights protection model, demonstrating that, all things being equal, the more democratic a country, the more its constitution will resemble that of Canada.

Indeed, in visiting South Africa recently on the occasion of the 15th anniversary of the South African Constitution -- where its Bill of Rights and jurisprudence draw more from the Canadian Charter and jurisprudence than any other -- the Canadian impact could not be more compelling.

On the other hand, there are disturbing noises in the respect for -- and adherence to -- the Charter in the Canadian context. To begin with, the landmark 30th anniversary process leading up to the adoption of the Charter -- let alone the 30th anniversary of the Charter itself -- has gone without any remark or notice from the Harper government.

Indeed, on only a handful of occasions during this 41st session of Parliament has the government even mentioned the word "Charter" in the House of Commons or before standing committees of the House, and then only in response to questions concerning the constitutionality of its suspect legislation, such as its omnibus crime bill. Nor has the word "Charter" even been mentioned in either the government's budget or its throne speech -- or in any of its international representations abroad. Yet while ignoring the Charter's historic milestone, the government has allocated $4,807,403 to commemorative activities marking the two hundredth anniversary of the War of 1812.

Even more disturbing has been the growing number of times -- and major areas -- where Canadian courts, respecting their requirement to uphold the rule of law, and protect the rights of Canadians, have had to hold the government to account for laws and policies that increasingly contravene the Charter.

Last week, the Supreme Court struck down a wiretapping provision of the Criminal Code on the grounds that it violated the Charter's protection against unreasonable search and seizure -- yet the government continues to push for legislation that would allow warrantless searches.

In February, the Ontario Superior Court found that a mandatory minimum sentence introduced by the government contravened the Charter protection against cruel and unusual punishment -- yet the government continues to introduce mandatory minimums, while enhancing existing ones.

Last fall, the Supreme Court overturned the Minister of Health's decision with respect to a safe injection site, citing medical evidence that the Minister's decision endangered the lives of people who frequent the facility -- violating their Charter right to life, liberty and security of the person -- yet the government continues to ignore expert evidence in formulating public policy generally.

Simply put, on the 30th anniversary of the Charter, we are witness to increasing judicial review and expert testimony reminding the government that it is not above the Charter, and indeed must comply with its requirements.

Regrettably, there is no indication that the government is paying heed to the series of recent court decisions -- and expert testimony -- regarding the suspect constitutionality of its laws and policies, since it continues to introduce legislation that arguably contravenes the Charter.

Indeed, the government's new immigration law, Bill C-31, is -- in the words of Peter Showler, former chair the Immigration and Refugee Board -- "littered with Charter violations," while its recently adopted omnibus crime bill (Bill C-10) is regarded as being constitutionally suspect in six different particulars, not the least of which that it invites constitutional challenge respecting ''cruel and unusual punishment'' for its consequential effect on prison overcrowding.

And so on this 30th anniversary, as we reflect upon the Charter -- and celebrate its singular contribution to Canadian law, life and identity -- let us hope that the government will join in this reflection, partake in the celebration of the Charter and demonstrate the necessary commitment to the ideals, values and goals underpinning the building of a more just, fair, and inclusive Canada wrought by the Charter.

 
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HUFFPOST SUPER USER
feuille derable
La République du Canada
10:21 PM on 04/18/2012
It's simple. Stephen Harper is not a statesman. He can only cling to a british monarch in a vain attempt to appear relevant.
11:18 AM on 04/18/2012
It is so hard to sit back and watch our rights, policies and programs disintegrate under the Harper Government. It is quite clear where this country is headed by Harper's snubbing of the 30th anniversary of the Canadian Charter. I had to bite my tongue for the past few years
while working in the social justice community about what is really happening in this country under the Conservative Government. Many workers involved in social justice and human rights organizations funded by the federal government, unfortunately to this day, cannot
speak up for fear of their little bit of funding left will be cut. But now I am retired and no longer represent any organization or group of people and can freely speak up about what is going on. Wake up Canadians - this shocking disregard of an important historical Canadian milestone is just the beginning of this Government's agenda! Harper's Conservatives snub this important anniversary yet cheered and celebrated when the long gun registry was scrapped by the Upper
Chamber which they now enjoy a majority.
Unbelievable and Unacceptable!
Traci Walters
Ottawa
As for the comments - "what rights have been taken away?" - You obviously are a person who does not face discrimination (let me guess - white/able bodied) or require a fundamental service to access
their rights such as access to transporation, employment, personal assistance, even health care etc.!
> Traci Walters
This user has chosen to opt out of the Badges program
08:40 AM on 04/18/2012
The problem with the Charter is not its ideals of equality etc, it is the fact that it gives power to judges over that of the people, through our elected representatives. It pushes us to the American model and now it is showing with the explosion of litigation that is now on track to equal that of the US.

The Charter has turned society into what the law as understood by judges is instead of the law as understood by judges in its application is. This is an important distinctionm, the Charter as it is takes the power of the people away and makes us a dictatorship by judges.

We have about 100 years until this evil will be clear - and evil it is because it has only one outcome - tyranny of a dictatorial judgeship.
09:23 AM on 04/18/2012
This is exactly why the charter is such an important document , it seems as if you completely miss the point of this article.

In Canada we rarely have a government voted in by a majority of our citizens, so for the most part we have less than 50% of the citizens being governed by the minority. The charter and the bill of rights ensures that the rights of all are upheld in equal context by the rule of the courts, this actual ensures our democracy functions as such.

The reason Harper shows disregard for the charter is that it keeps his small band of thieves and supporters from hijacking our democracy and turning it into a dictatorship during his tenure. If Harper had his way democracy would only occur every 4 years, thankfully Trudeau had the foresight to know bone heads like Harper needed to be kept in check.
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HUFFPOST SUPER USER
Mike vdB
Get involved, always question, don't just exist.
09:58 PM on 04/17/2012
I think Mr. Harper's disdain is showing just a tad. He does not like being questioned and the CCRF gives the power for the people and the courts to question the govt's decisions. Checks and balances are needed in a working democracy. Because of this, I can stand and proudly say I am Canadian. Thank-you to the people and the govt of PET that made that happen.
07:02 AM on 04/18/2012
Yeah, thanks PET (and I voted for him twice) for giving us a constitution that our largest province is not signed on, and he had to buy off 2 other provinces to get it home.
And Quebec has the language laws, struck down by the courts but because of the nonwithstanding clause the Quebec law still stands.
Thanks again for the great job of Canadian unity, you tried to extinguish the sparks of separtism in Quebec with gasoline! then spawned talk of separtism in the west and started treating big oil companies like sacred cows (a problem attributed to the present government)
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HUFFPOST SUPER USER
Mike vdB
Get involved, always question, don't just exist.
09:57 AM on 04/18/2012
Yes, let's take something like the CCRF and use it to complain about all the other things that occured during that time. I would assume that you would have come to the realization that no govt is, or has, ever been perfect in their choices. Especially if they are driven by ideology. I was not singing the praises of PET. But his govt did happen to listen to the people and include a Charter that has helped to define us as Canadians and help us grow as a responsible country. If it was any other govt that brought that forth, I would still thank them.
05:56 PM on 04/17/2012
I am in total agreement with Robert Lear, but I think there is a very personal element in Harper's ignoring this anniversary. It was a Liberal accomplishment (mostly, as I do know there were Conservatives and NDPers that also worked to bring it about) and therefore can't be good. Harper's hatred of all things Liberal verges on the unbalanced.
12:20 PM on 04/17/2012
The Harper government's approach is clear: "gradualism" or "incrementalism" slowly ratcheting a shift of the Canadian political ground toward a more authoritarian, elite-dominated system. In other words, this is a government with less insight or foresight but considerably more oversight. The Constitution gives us, thankfully and with involvement of the judiciary system, the insight and foresight needed for a fully functioning democratic society.

One doesn't know if the Harper government is consciously anti-democratic, but its performance over the past two terms certainly indicates that has been its direction.
12:02 PM on 04/17/2012
Of course he does. Then he'd be able to take more freedoms away from us. One by one. We're practically the 51st state anyways.
HUFFPOST SUPER USER
Colin Speth
A Claymore for your thoughts
05:30 PM on 04/17/2012
Please name one freedom that has been taken away from you.
HUFFPOST SUPER USER
russell merifield
12:52 AM on 04/18/2012
Fortunately they haven't but does the government protect these. Do a check on all the Charter cases the government has lost. Mr Cotler only cites a few. Has the government lived up to the judgments, not so often
06:52 AM on 04/18/2012
Havent seen any rights taken away from vest majority of Canadians but our much celebrated Charter has certainly given quite a few to people in prison or facing prison time for some crime a few brakes.
In an interview on CBC yesterday a law professor stated that the great majority of people seeking protection under the charter were in fact people with criminal backgrounds.