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The Canadian Charter of Shortcomings and Pitfalls

04/20/2012 02:30 EDT | Updated 06/20/2012 05:12 EDT

It was raining that day on Parliament Hill when I and countless other proud Canadians stood in the rain to witness Prime Minister Pierre Trudeau and Queen Elizabeth II sign the Constitution thirty years ago. Canada had at long last broken free of its colonial status.

Thrown into the bargain was a controversial Charter of Rights and Freedoms. Although one of Trudeau's few real achievements, the Charter has, nonetheless, been a disappointment. Intended to enshrine individual rights in the constitution, the charter has in many ways come up short.

First, the existence of that pesky notwithstanding clause means that governments can always override the Charter if they see fit. While the argument for parliament supremacy is compelling, it is little consolation for non-francophones living in Quebec where the provincial government has repeatedly used the notwithstanding clause to circumscribe minority linguistic rights. We should not be surprised that majorities sometimes act like majorities. That's why we have a Charter. Too bad that when it really counts, the rights of minorities can still be sacrificed.

Second, the Charter has proven to be quite a malleable instrument in the hands of activist lawyers and judges, and has been used in ways that parliament never imagined, let alone intended. A constitution is a living document, the interpretation of which will evolve over time to reflect changes in broader society. Yet it is a fine balance between reflecting societal change and inducing it. I would argue that rather than being pulled by those changes, the Charter has often been doing the pushing.

Finally, many people mistakenly believe the Charter is about individual rights. It is not. We are not all equal before the law. In many cases, group rights trump individual rights. Consequently, if you are an aboriginal, a catholic or a francophone, to take three examples, you may have "rights" that the rest of us don't. In effect, individual freedom still sits at the back of the bus.

All the same, I think Canada is better off with an imperfect Charter of Rights and Freedoms than without. For that, Pierre Trudeau and the Liberal Party deserve our appreciation. But please, spare us the mock indignation about Prime Minister Stephen Harper's refusal to celebrate the anniversary.

After all, it was Conservative Prime Minister John Diefenbaker, with his 1960 Bill of Rights, who took the first important step to enshrine Canadians' rights in law. If Pierre Trudeau's Charter of Rights is to truly unite Canadians, then it must protect the rights of all Canadians, not just the favoured causes of the left. Until it does, one should not be surprised that some, like Stephen Harper, do not put it up on a pedestal.