Max Fawcett is a freelance writer and a former editor of Alberta Oil magazine and Vancouver magazine.
For months now, Alberta Premier Jason Kenney has made it clear that he will do almost anything – including, it seems, letting COVID-19 spread unchecked – in order to avoid issuing orders or restrictions that would constrain people’s rights. But on Tuesday, he may have gone further than anyone ever imagined possible, at least rhetorically: He invoked the signature achievement of Pierre Elliott Trudeau in order to defend his own government’s actions – or lack thereof.
“In so much of the debate,” he mused during his press availability after announcing new government restrictions, “have [we] forgotten about the Charter of Rights and Freedoms?”
If it’s any consolation for him, he’s not the only conservative who’s suddenly (and perhaps conveniently) been imbued with renewed respect for Mr. Trudeau’s constitutional contribution. In a Toronto Sun op-ed earlier this month, Conservative Party of Canada Leader Erin O’Toole invoked the Charter in the course of criticizing Justin Trudeau’s response to an outbreak of religiously motivated violence in France. “Here in Canada,” Mr. O’Toole wrote, “freedom of expression is a pillar of our democracy. It sits among the values we hold dearest; one we simply cannot negotiate.”
But all Charter rights are, by their very definition, negotiable; they are not absolute. That’s what the Prime Minister was trying to explain when, in response to a question about whether people should be able to make fun of the Muslim prophet Mohammed, he explained that rights and freedoms aren’t without limits. “We owe it to ourselves to act with respect for others and to seek not to arbitrarily or unnecessarily injure those with whom we are sharing a society and a planet.”
This is a key and crucial difference between our bill of rights and the American one – the one that seems to loom much larger in the collective Canadian conservative consciousness. As former Supreme Court of Canada chief justice Beverly McLachlin noted during a 2004 speech to a group of American scholars, the differences between the two systems are best exemplified by how they treat freedom of expression. “The words of the Canadian guarantee acknowledge the state’s right to limit free speech; the words of the American guarantee forbid the state from doing so.” Indeed, in a quintessentially Canadian way, the Charter begins with a caveat that applies to everything else that follows: that it “guarantee the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Ms. McLachlin went on to explain that “as a general rule, individual rights in Canada are more circumscribed, and collective or ‘group’ rights, protecting linguistic, religious or aboriginal communities, are more generous than in the United States. In the United States the ethic of the individual is foremost; in Canada there is more concern for the general public welfare and members of disadvantaged groups.”
This is totally at odds with how people like Mr. Kenney seem to understand the Charter and its implications for personal freedom and liberty. “Since when should governments start with an impairment of fundamental Charter protected rights and freedoms, rather than engage in such an impairment as a last and final resort?” he said on Tuesday.
But the Charter assigns no inherent precedence to one right or freedom over another, and the right of a business to stay open is no more important than an individual’s Charter-protected rights to life and the security of the person. In response to the Premier’s comments on Tuesday, Eric Adams, a professor in the University of Alberta’s faculty of law, tweeted that “courts will grant considerable deference to governments when limiting rights in the pursuit of other equally compelling rights and freedoms – like the right to life and security of the person, and the right not to be discriminated against on the basis of age or disability.” He wasn’t done. “In a public health emergency,” Mr. Adams said, “proportionate responses, and not the least that they can do, is what must be demanded and what should be expected of those tasked with the immense challenge of governing.”
It’s not terribly surprising to see Mr. Kenney misrepresenting the Charter, given that he has routinely traded in misunderstandings of our broader Constitution. For example, he’s made considerable political hay from Section 36 of the Constitution Act (the Charter is part one of the Constitution Act, which includes sections 1 through 34), which outlines the federal government’s duty to promote equality of opportunity and provide “essential public services of reasonable quality” across the country, as well as the equalization payments that serve those objectives.
But make no mistake: the Charter doesn’t give cover to governments that don’t want to do what’s required to limit the devastating effects of a pandemic, and it doesn’t explain their decision to slow-roll any public health measures or restrictions. Maybe conservatives would understand that if they spent more time reading the document and less time cynically trying to hide behind it.
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