The 40th anniversary of the coming into effect of the Charter of Rights and Freedoms has come and gone, with less than the usual hostility.
On other occasions the opinion pages have been filled with Charter dissenters: conservatives assailing it as a virtual coup d’état, the supplanting of Parliament by the courts as the seat of authority; progressives dismissing it as a “corporate bill of rights,” a baleful American import with an innate bias against the beneficent state.
But this time? The critics were notably muted. As the years have passed, the document that once so divided the country seems to have won widespread acceptance, lately embraced even by conservative populists.
Common to its old-line critics and newfound friends, however, is a view of the Charter as marking an abrupt departure, for good or ill, in Canada’s constitutional evolution. What is surely at least as striking, however, is its continuity with what went before.
The notion, in particular, that the Charter was unusual in our history as an example of a written constitution, or that it began an era of “judge-made law,” is quite ahistorical. The British constitution that is our inheritance is replete with written documents, from Magna Carta to the Petition of Right to the Bill of Rights 1689, all of them applied and interpreted over the years by the courts.
So, for that matter, was the British North America Act. Decades before the Charter, courts in Canada – and, until 1949, the Judicial Committee of the Privy Council in London – were deciding cases and making law on the basis of the division of powers laid out in the BNA Act.
All the Charter did was to let the public in on the game: rather than simply adjudicate whether one level of government had intruded upon the jurisdiction of another, the courts were now instructed also to patrol intrusions by either level of government on the rights of the citizens.
But the fundamental objective was the same: to constrain governments to act within the law. In this the Charter was not just in the tradition of previous constitutional documents, but of the whole of the written law. All laws constrain the discretion of government; all laws are interpreted and applied by the courts; all therefore hold the potential for judges to “make law.”
What was original to the Charter, however, was the declaration with which it began: Section 1, the famous “reasonable limits” clause. This is sometimes misrepresented as a mere statement that rights are not absolute. But in fact it is much more narrowly constructed than that. The rights set out in the Charter, it says, are subject “only” to such limits as can be “demonstrably justified” in a “free and democratic society.”
The onus, that is, is always on the government to justify any such limit. The requirement was further refined in an early Charter ruling, R. vs. Oakes. To be justified as a “reasonable limit” on Charter rights, it said, a law must have a “pressing and substantial” objective; it must be rationally connected to achieving that objective; it must impair rights to the least extent necessary; and the impairment must be proportional to the good it achieves.
The Oakes test, as it is called, will disappoint those who take an absolutist view of rights. But neither did it give license to governments to do as they please. What it did was give structure to the exception set out in Section 1. It gave us a way of thinking through how far a given right may be bent in the service of some larger social goal, without losing sight of the right altogether.
Of course, Oakes itself depended, as a test of reasonableness, on being applied reasonably. Too often, its strictures have been elasticized by judges seeking reasons to avoid overturning a law: a kind of “activism by omission” that is as objectionable in its own way as the more overt kind.
We are condemned, that is, in this as in other matters, to the exercise of judgment. Far from a series of bright-line rules, the Charter encoded a set of aspirations, broad principles by which we wish to be governed, together with promises on the part of our governments to abide by them.
It is for the courts to hold governments to their promises. But the courts are products of the same society as those we elect – whose handiwork, after all, the Charter was. The Charter embodied a broadly shared, though not universal, view of the relationship between the state and the citizen. Subsequent court rulings have likewise reflected, as much as shaped, evolving social attitudes. Ultimately, we are all in this together.
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Andrew Coyne