December 07, 2018

The Charter of Rights Myth

John Robson recalls liberty’s ancient pedigree

The fairy tale that Canadians lived without constitutionally guaranteed rights until Pierre Trudeau brought the shining Charter of Rights and Freedoms down from Parnassus in 1982 has no historical foundation. But it’s surprisingly widely accepted in Canada today.

L. Ian Macdonald, then its editor, wrote in the Institute for Research in Public Policy flagship Policy Options (Dec. 2007/Jan. 2008):

There are now two constitutional traditions in Canada, the British North America Act of 1867 … and the Charter of Rights and Freedoms of 1982. One gave birth to our country; the other has had a transformational effect on it, arguably far beyond the intent of its framers. One defined the rights of government, and the division of powers; the other has since defined the rights of citizens. In other words, Canada is two mints in one.

In the pivotal 1998 Vriend Supreme Court ruling that the right of free association guaranteed in the Charter didn’t extend to things the Court didn’t like, no matter what the text of the law said or did not say, Justice Iacobucci wrote for the majority that in 1982, “Our constitutional design was refashioned to state that henceforth the legislatures and executive must perform their roles in conformity with the newly conferred constitutional rights and freedoms.” And two years ago (Apr. 17, 2013) the man who is now our Prime Minister said the anniversary of the Charter’s adoption “marks one of the most important days in our country’s history … It was more than 30 years ago that we set out to identify and enshrine the values that define our rights and responsibilities as Canadians; the Charter was the result.”

T o call these views baloney would insult finely minced Italian sausage. They are crudely ahistorical, making short work, or rather no work, of Magna Carta, Sir Edward Coke, John Locke, the Glorious Revolution, Sir William Blackstone and King Alfred the Great, of the Common Law, of writs including habeas corpus and great struggles including the English Civil War against governmental presumption and oppression.

To dismiss this past as “colonial” is nonsensical as constitutional theory. The Constitution Act 1867, the British North America Act until vandalized by Pierre Trudeau, specifically confers upon us “a Constitution similar in Principle to that of the United Kingdom.” And it is nonsensical as history. That British constitution was founded upon liberty, a fact of which our founders were not merely aware but extremely proud.

Consider the renowned legal and constitutional commentator who called his own country, in 1765, “A land, perhaps the only one in the universe, in which political or civil liberty is the very end and scope of the constitution.” Today it is easy to mistake this for a distinctly American sentiment. But the author was Blackstone in the first volume of his Commentaries of the Laws of England (Vol. 1, p. 6).

A century before Blackstone wrote, during the English Civil War, the poet John Milton called London “the mansion-house of liberty”. And he was harking back to the great early 17th-century statesman Edward Coke, who in turn harked back to Magna Carta. In the minds of Englishmen, wherever they were found, over many centuries, the foundation of their system of government in the secure constitutional guarantee of individual rights was both clear and explicit. Including those in British North America.

Consider the fiery, if slightly florid, claim by Sir Richard Cartwright in the Confederation debate in the legislature of the United Province of Canada in 1865, that

Every true reformer, every real friend of liberty, will agree with me in saying that if we must erect safeguards, they should be rather for the security of the individual than of the mass, and that our chiefest care must be to train the majority to respect the rights of the minority, to prevent the claims of the few from being trampled underfoot by the caprice or passion of the many. For myself, sir, I own frankly I prefer British liberty to American equality.

It was also the view of Sir John A. himself, who in that same debate said

We will enjoy here that which is the great test of constitutional freedom—we will have the rights of the minority respected. In all countries the rights of the majority take care of themselves, but it is only in countries like England, enjoying constitutional liberty, and safe from the tyranny of a single despot, or of an unbridled democracy, that the rights of minorities are regarded.

It was widespread among the people as well as politicians. For speaking of fiery prose, Joseph Howe, later the father of self-government in Nova Scotia, was tried in 1835 for libelling the colonial administration in that colony. The judge had instructed the jury, correctly, that British law did not allow truth as a defence. But Howe appealed to the jury to annul the law in defence of traditional individual rights. “Will you,” he challenged them, “permit the sacred fire of liberty, brought by your fathers from the venerable temples of Britain, to be quenched and trodden out on the simple altars they have raised?” And those sturdy sons of liberty replied with a resounding “No,” and acquitted Howe.

Magna Carta entrenched our core historical individual rights. Virtually everything important is in there, from security of the person to property rights to representative self-government to the crucial rule of law enshrined in the preamble to the Constitution Act, 1982. Magna Carta even includes rights for women. If the right to bear arms was not included, it’s only because it never occurred to anyone that the state might be able to take it away or seriously try.

Magna Carta was not perfect, of course. No human contrivance is. It took centuries to refine the meaning of some of its promises, especially the need for “the general consent of the kingdom” for taxation. Moreover, the rights protected by Magna Carta were not extended to everyone. Indeed in some respects we went backward rather than forward as the years went forward; racial slavery was unknown in medieval England and slavery of any sort was rapidly disappearing. Which is a salutary warning against the lazy assumption that history is a tale of inevitable progress.

The fact that the 1982 Charter came after the 1867 Constitution which in turn came later than the Glorious Revolution of 1688 over four centuries after Magna Carta does not automatically mean it was “better.” The calendar is not an escalator on which we can slouch idly while it carries us onwards and upwards to an ever more glorious future of endless change.

How did we forget we were born in liberty, that our flourishing society is the result of a careful guarding and tending of precious freedoms over many centuries, literally from the mists of time? How did we forget that England, and then the United Kingdom, were long distinguished precisely by freedom, by popular control of government, by procedures like habeas corpus that prevented high-sounding rhetoric from being the bloody travesty it was in, say, the French Revolution?

Magna Carta is not ancient history. Not in the sense of belonging to the 13th century, or the 17th, or the 19th. As Brian Lee Crowley reminds us in Fearful Symmetry: The Fall and Rise of Canada’s Founding Values, “As late as the federal election of 1957, [Liberal Prime Minister Louis] St. Laurent was opining: ‘Any ideas of non-essential interference by the Government is repugnant to the Liberal Party.’” And right after the Liberals lost that election, prominent Liberal Charles Dunning, formerly premier of Saskatchewan and twice Finance Minister under Mackenzie King, warned against his party advocating a welfare state, saying that social programs created

... a tremendous and expensive machine to bring about redistribution of wealth by taxation, and lessening the responsibility on the part of the individual citizen, and by doing so are decreasing both the dignity and freedom of the individual person. I know it may not sound like practical politics to be flashing this kind of red light, but surely we Liberals must get back to fundamental thinking in terms of principles.

It is a peculiarity of the dominant modern story about Canada that if the Charter was a triumph of individual rights in an era of progressive collectivism, then the 1970s must logically have been a golden age of darkness. What those who believe this lack in coherence they make up in vehemence, but the result is not intellectually pretty.



The country has changed dramatically in recent years and the Charter has played a significant part in that change. But its main impact has not been to create or entrench individual rights where they were vague and insecure previously. It has been to override them with collective rights, increasingly infringing our right to free speech, free association and certainly property, excluded in 1982 despite strong public sentiment for its inclusion.

The Charter of Rights and Freedoms, as the old jibe has it, is both original and good. But what is good is not original and what is original is not good. It mixes individual and group rights, popular and parliamentary sovereignty, the rule of law and the discretion of the great and good in an unstable and unpleasant mixture.

Canadian political leaders still pay lip service to liberty, as they do to the rule of law. Yet Canadians today are dramatically less free than they were in past decades and indeed past centuries. Speech is monitored by human rights commissions not bound by due process. Free association is routinely abridged. A massive network of petty regulations restrict what we may do on or with our property. Executive branch agencies often do not need warrants to carry out intrusive inspections. Firearms ownership is severely limited. And taxes are enormously high by any historical standard.

The Charter may have done more to enshrine than to create this trend. But it is absolutely untrue that it gave us rights where before we had none. And in forgetting we ever had them, we are in the position of pompous ignoramuses.

This article appeared in The Dorchester Review Vol. 5 No. 2, Autumn/Winter 2015, pp. 8-10.