Tuesday, April 17, 2007

Happy Twenty-fifth, Charter of Rights! Now Get Over Yourself

We might have been better off without it. We could (and without Trudeau probably would) have patriated with just an amending formula, and maybe a strengthened statutory Bill of Rights.

The direst warnings of its opponents haven't come true. But the criminal justice system is more procedurally overwrought. Constitutional doctrine has never become predictible and legal; it still comes down to a large extent to whether five judges think the law wise. And the major social issue facing Canada -- the condition of aboriginal people -- has been diverted from education, health and urban issues into a neverending attempt to parse the meanderings of Antonio Lamer to the benefit of lawyers and consultants. Speech is freer, but this has a lot more to do with technology than the Charter. We probably are more Americanized and more centralized. And, of course, the lack of consent from Quebec put us through years of turmoil and almost destroyed the country.

Still, I'm not totally agin' it. The ideas that there are duties limiting the authority of our governors (ss. 2-34), and that all rights are limited (s.1) are good ones. The notwithstanding clause is an ingenious device. Judicial review has done some harm and some good, but it does emphasize the need to scrutinize limits on liberty.

I'm not entirely impresed by the "counter-majoritarian" difficulty because I tend to think a polity needs to mix aristocratic and democratic elements in its system of government. Both the people and the elites can make mistakes. The fundamental problem that democratic opponents of the Charter face is that the court maintains its popularity. If it didn't, the notwithstanding clause would probably not even be necessary, since there are so many other ways to frustrate judicial decisions. But if it is necessary, it exists.

So long as affirmative remedies are limited (and that is a precarious "so long"), then the Charter is unlikely to do much damage. It provides an elite veto -- one that will be rarely exercised. But it allows for a chamber of "sober, second thought," which the Senate has never been able to fulfill.

A coherent right-wing response to the Charter has never developed in this country. Originalism is unattractive, since the original intenders were Trudeau and Chrétien, if not Barry Strayer and LEAF. The right generally longs for the days of Parliamentary supremacy, but opportunistically abandons that preference when a decision like Chaoulli comes along.

The one thing I most would like to see is the rehabilitation of the "notwithstanding clause." It is in many ways the most Canadian part of the Charter, and it should be used more often.

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