04/17/2012 09:55 EDT | Updated 06/17/2012 05:12 EDT

Does Harper Wish the Charter Was Never Born?

2012-04-16-Charter.jpgOn the Charter's 30th anniversary, we find ourselves in a Dickensonian moment -- the best of times for the Charter in global constitutionalism terms, but a worrisome one in Canadian terms. To begin with, the landmark 30th anniversary process has gone without any remark or notice from the Harper government.


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.