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A better way to fix Canada Print E-mail
Thursday, 01 December 2005


But why stop there? Imagine a Canada where…

Citizens had the final say over the Charter of Rights

Canada adopted U.S.-style constitutional rights with Pierre Trudeau’s “Charter of Rights and Freedoms” in 1982.

The Charter codified our traditional rights (freedom of speech, belief and assembly, the right to vote, etc.)*, and let judges rather than elected representatives decide what these rights mean, when they apply and when they don’t.

*Footnote: The only major right missing from the Charter is the right to property, which still exists, at least in theory, in ordinary statute and common law.

Unfortunately, judges are not always judicious.

True, Charter section 33 allows elected governments (with some difficulty) to override rights that a court has chosen to invent. But politicians are justifiably loath to be seen “taking away rights” by invoking the so-called “notwithstanding clause.”

The real question is, however, who’s to decide when a particular Charter right reasonably applies and when it doesn’t?

Since the Charter took effect 23 years ago, Canadian judges have given the criminally accused and convicted even more rights than American criminals, and we have become one of the most liberal criminal law jurisdictions in the world.

For example, a 1990 Charter ruling (under section 11) about timely trials led to the dropping of 43,000 criminal charges in Ontario, including murder, manslaughter and sexual assault. They just let them go.

Other cases -- and whole categories of cases -- have been thrown out when a single judge decided to invoke the Charter to change rules about arrest warrants, collection of evidence, use of informers, and burden of proof.

Under the Charter judges have become increasingly high-handed and unaccountable. The Supreme Court invented for itself a power to rewrite legislation (“reading in”). It has invented new aboriginal rights, immigration rights, and sexual rights.

To protect their “judicial independence,” judges have even determined how governments will set their own pay, with the not-surprising result that they have become the country’s highest-paid occupation, according to Statistics Canada.

There is no sign of this ending. The next big issues for judges to decide will likely be lowering the age of sexual consent and setting new limits on religious free speech.

Blatantly missing from the rights question is any direct reference to public judgment. The constitution is supposed to reflect the values, beliefs and priorities of the Canadian people, not just those of the legal elite.

We should amend Charter section 33 to state that in those rare but important cases when courts and politicians disagree about what the Charter means, the question will be settled by a public referendum in the next general election.

 
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