Tony Kondaks Headshot

This Charter Doesn't Deserve a Birthday Celebration

Posted: Updated:

I want a charter that will protect individual freedoms. And minority rights.

Our so-called Canadian Charter of Rights and Freedoms does neither.

What it does is provide loopholes, obfuscations, and justifications for governments and courts alike to bend, limit, and otherwise violate both individual and minority rights of Canadians.

How does this poor excuse for a Bill of Rights limit and restrict our rights and freedoms? Let us count the ways.

Section 23. Minority Language Education Rights

Section 23 is a race law. It utilizes the same procedure of discrimination used under the former South African apartheid system. Section 23 enables the segregation of rights in Quebec based upon who your parents are and what their classification is. This right is then handed down, generation to generation, based solely upon this test of descent. This violates the basic tenet of free and democratic societies that all are equal before and under the law.

Section 23 is based upon and inspired by the very worst part of the very worst law ever passed in Canada: Quebec's Bill 101, the Charter of the French Language. None other than Jean Chrétien, then Justice Minister under Pierre Trudeau during the era of the repatriation of the constitution, was responsible for creating a race law out of our constitution.

Subsection 23.1.a

As if section 23 isn't bad enough, buried within it is an additional layer of inequality.

Subsection 23.1.a provides that rights are meted out to immigrants in Quebec differently than they are in the rest of the country.

Charters of rights are supposed to establish equality, not inequality.

Section 1

At first blush, section one appears harmless enough. Known as the "reasonable limit" clause, it enshrines the principle that rights and freedoms are not absolute, as in: free speech doesn't extend to shouting "fire" in a crowded theatre.

However, the United States' Bill of Rights contains no reasonable limit clause despite the absolutist language in the First Amendment guaranteeing the freedoms of speech, press, and religion. Yet this hasn't stopped American courts over the years from developing a body of precedents in which these "absolutes" have been reasonably limited.

Why then did the framers of our Charter find it necessary to entrench this principle as a constitutional provision? Has codifying the reasonable limit doctrine made it into something more?

Codifying as a constitutional interpretive clause an already established doctrine only created opportunity for judges to interpret anew and thereby create new precedents, and new law. Sadly, their "fresh" interpretations haven't always fallen on the side of the individual but on the side of governments and a diminution of rights and freedoms.

Section 15.2 Affirmative Action

Affirmative action is all about "quotas and preferences": giving to some what is denied others. It is written into our charter as an exception to equality.

Reasonable people can disagree whether affirmative action is a good or bad thing, but to put it as a constitutional provision? What possessed our framers? Again, the U.S. doesn't have affirmative action entrenched in their constitution but it has nevertheless developed under the framework of their Bill of Rights. Over the relatively short period of time affirmative action has been in existence, it has changed, developed, and been refined within the context of their Bill of Rights. And it continues to do so.

Section 15. The Absence of "Language" as a Prohibited Base of Discrimination

Section 15 provides for "equality rights," one of the cornerstones of the Charter. Discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability is prohibited.

Yet "language" does not appear as a prohibited base. In a country in which language defines our soul, character, and history, it is conspicuous by its absence. Even Quebec's human rights charter contains "language" as a prohibited base.

Its omission was intentional. Had the framers included "language" as a prohibited base, discriminatory provisions such as those found in Chapter VII of the Official Languages Act (OLA), a veritable feast of social engineering, would have been ruled unconstitutional.

Chapter VII provides for special treatment for members of Canada's two official language groups over and above any consideration of government services. Governments must not be allowed to promote one ethnic or linguistic group over any others in the private sphere. Swahili and Portugese may not have official status when it comes to the government providing services but in the private sphere they are equal to English and French.

If anything, the official language status of English and French provides these two language groups with an unfair advantage over all others because the power and influence this status provides necessarily spills over into the private sphere. The absurdity of promoting English and French in non-governmental areas -- as contemplated in Chapter VII of the OLA -- becomes obscenely apparent when, for example, the situation of Canada's aboriginal languages is considered.

According to a group of Indian chiefs from Manitoba, there are 55 aboriginal languages spoken in Canada, 52 two of which are now on the brink of extinction. Most have only a few hundred speakers left; others a few dozen; many only five or six speakers remaining. Each of those 52 is what can truly be described as being in a fragile and threatened state.

To promote the French and English language groups -- with over 33 million speakers in Canada -- in the private sphere exposes a mean-spirited, exclusionary, intolerant worldview that ignores non-white, non-European based languages and cultures. If "language" was a prohibited base of discrimination, promoting English and French in this manner would long ago have been determined unconstitutional.

Section 33: The Notwithstanding Clause

Section 33 enables a provincial legislature or the federal parliament to suspend certain rights and fundamental freedoms contained in the charter.

The Notwithstanding clause is, to most, the most obvious flaw of the Charter. It is what inspired former Prime Minister Brian Mulroney to declare that the constitution "is not worth the paper it is written on."

It used to be my first complaint as well; now I'm not so sure. Seeing how judges have abused their interpretation of the Charter in so many ways since its inception, I now ask: What is a better protector of rights and freedoms, a charter of rights subject to interpretation by unelected judges or the vigilance of elected representatives in parliament?

In conclusion

On this, the 30th anniversary of the Canadian Charter of Rights and Freedoms, we can assess whether our Charter lives up to its name. As I hope I've demonstrated, our Charter misses the mark by a wide margin. Indeed, I believe it has done more harm than good.