Happy Birthday Charter!!!

For 25 years Canadians have been under the protection of the Charter of Rights and Freedoms. It has acted exactly as Pierre Trudeau envisioned it: a sword and a shield used to safeguard the liberties and freedoms of Canadian citizens from the oppression of the government. It is a living document, and the Charter is directly responsible for the evolution of rights regimes in this country, be it same-sex marriage, protection of religious minorities, and ensuring the fundamental freedoms that we all enjoy equally under the law.

In that regard, it is fortuitous that my forthcoming essay publication in Federal Governance is coming out when it is. The notwithstanding clause is a controversial--yet central--piece of the Charter; without it, we would not even have a Charter because some of the provinces wanted to override some rights in the name of public morality or interest. Of course, that intention has not exactly panned out as those premiers may have expected, and for this, we have Canadians to thank. Our deep-seeded attachment to rights and freedoms has erected a taboo against the usage of the notwithstanding clause to ensure that the rights and freedoms prescribed by the Charter remain intact and undisturbed by governments. Every non-placeholding* Prime Minister in the Charter era has had their own bouts with the notwithstanding clause, and every one of them has acted pursuant to their dilemma of aversion, rejecting the use of the notwithstanding clause because it would be an admission that they were taking away rights from Canadians. The power of this normative barrier is profound, and something about which all of us have a stake in maintaining.

The rest of the Charter is far less controversial. Indeed, some would argue that what is not protected by the Charter is more noteworthy than the rights that are protected. The lack of protection of property rights is something which PM Stephen Harper has said he would address in the event of a renewed constitutional dialogue, though it is not something that is anywhere near the top of his list of priorities.

The other sections of the Charter assure Canadians are entitled to certain fundamental freedoms: freedom of speech, freedom of association, freedom of religion; the Charter prescribes the right to "life, liberty, and the security of the person" (an underrated statement that I feel should trump "peace, order, and good government" as the key statement of the role of the federal government), which is controversial in its own right because of the implications around the abortion issue; and, lastly of note, the Charter provides for equality under the law without discrimination based on race, gender, sexual orientation, religion, or any other form of "othering."

In short, the Charter of Rights and Freedoms is the finest political achievement in Canada, and certainly the most significant aspect of the Canadian Constitution. It is an instrument to which Canadians can look upon with pride and dignity, and take comfort in the protection of the rights and values that we so closely cherish.