On the 40th anniversary of proclamation of the Constitution Act, Conservative distrust of the Charter still runs deep

Today marks the 40^th anniversary of the signing of the proclamation of the Constitution Act, 1982 – including, importantly, our Canadian Charter of Rights and Freedoms. 

Queen Elizabeth II and Prime Minister Pierre Elliott Trudeau signed the proclamation on this day in 1982 on Parliament Hill.

The smudges on the original document are from the rain that fell on Ottawa that day, not Conservative tears.

Still, plenty of Conservative tears have been shed – more in private than in public – about the triumph of April 17, 1982. 

In fairness, there were plenty who opposed the idea of a written charter of our freedoms and rights, and not all of them were Conservatives. But it is fair to say that the most passionate opposition was in right wing circles, and it is on the right that distrust of the document continues to run deepest to this day. 

A decade ago today, the Conservative government of Stephen Harper – normally so obsessed with history – had almost nothing at all to say about the 30th anniversary of the occasion. 

Part of this, naturally, was mere partisan politics. The Constitution would not have “come home,” and the Charter would never have been enshrined in law, had in not been for a Liberal prime minister, and one very unpopular in Mr. Harper’s circle.

More significantly, though, the right in Canada, of which Mr. Harper continues to be an influential leader along with former members of his cabinet like Alberta Premier Jason Kenney, distrusts the idea of a charter, and certain extremist elements of the right despise and abhor it.

As Mr. Harper said in 2000: “I share many of the concerns of my colleagues and allies about biased ‘judicial activism’ and its extremes. … Serious flaws exist in the Charter of Rights and Freedoms.”

He also expressed his preference for “the traditional approach of common law and parliamentary supremacy,” that is to say the tyranny of the majority when they can muster the votes, and of the wealthy minority when they can’t.

Know ye, my fellow Canadians, that if a Conservative Alberta ever separates from Canada as a significant element of this province’s conservative movement dreams, we will lose many rights and freedoms in the change, and many more over time. 

The phenomenon of Charter antipathy continues to thrive. On Thursday, former Alberta finance minister and Conservative leadership candidate Ted Morton was bloviating in the National Post that the Charter “is still one of the worst bargains in Canadian history.”

Dr. Morton, who remains the worst premier Alberta never had, trotted out a litany of hoary Tory backroom whinges about the Charter. Among them, that it diminished the ability of provinces with Conservative majorities to act arbitrarily, it respects the rights of minorities too much, and despite the Notwithstanding Clause inserted by a group of premiers at a moment of crisis in the negotiations it still gives too much power to “judicial activism.”

“Which takes us to the winners’ circle,” Dr. Morton carped. “Any policy touching on bilingual education, Aboriginal issues, abortion, LGBT or feminist issues, or prisoner voting rights – if a provincial government does not accede to the interest group’s demands, that government can expect to be hauled into court and usually lose.”

Dr. Morton’s real problem, one suspects, is that Conservatives have never managed to stay in power long enough to tilt the judiciary far enough in their favour to permanently remake the country in the image of their ideology, as has happened in the professor’s native United States.

Dr. Morton was, famously, a signatory to Mr. Harper’s quasi-separatist Firewall Manifesto – a document that still animates many of the policy prescriptions of Mr. Kenney’s United Conservative Party Government, including his effort to create an easy-to-raid Alberta pension plan and to replace the RCMP with a provincial police force that will more easily serve his political ends. 

Other Charter critics, like Preston Manning – the grandaddy of the neoliberal right in Canada, once its godfather – would have you believe we somehow had more rights when Parliament was supreme and our rights were traditional but not written down anywhere.

Mr. Manning once asked, rhetorically: “Do Canadians enjoy more protection of their freedom because of a constitutionally entrenched charter than the British do without one? I don’t think it’s made a quantum difference in that regard.”

This does not explain why demands for a written constitution, like Canada’s, continue to grow in the United Kingdom. 

The same angry tune is sung by the right’s journalistic spokespeople.

Conrad Black once dismissed the Charter as “a farce” and “a nuisance that has turned many of our under-qualified judges into feckless social tinkerers.” 

A conference in 2006 organized by Danielle Smith concluded, according to the late Link Byfield in a column about the event, that “the courts should be restrained from inventing new laws under the Charter.” This was a tendentious way of saying that the courts should be prevented from protecting individuals’ rights when they are in conflict with the corporate right to unlimited profit.

Ms. Smith, as alert readers will have noted, is back from the journalistic crypt and would very much like to once again be an Alberta MLA and, if possible, premier. 

Back in the day she explained how right-wing politicians could exploit the weaknesses in the Charter by drafting laws that go as far as possible to abridge our rights through administrative rules without pulling the constitutional fire alarm.

Yet for all this complaining on the right, the Charter remains enormously popular among ordinary Canadians in all provinces, including Quebec, because they understand immediately and intuitively that stating clearly what our rights are in a document that overrides all other laws is an effective way to protect citizens from the wealthy and the mighty who throughout history have always acted in their own class interest.

This would explain the weird flex lately by certain politicians on the right to try to portray themselves as better protectors of the Charter than any Liberal or New Democrat. 

Beware such claims, dear readers. If we ever have enough Conservative provincial governments and federal MPs at the same time to amend our Constitution without too much of a struggle, we will not be gaining rights and freedoms as a result – except perhaps those kinds of neoliberal “rights” that permit corporations to exploit Canadians without recourse to the courts. 

The Charter is an imperfect document, the product of a difficult compromise. 

But most of us know we are much better off with it than without it, and we are thankful to Pierre Trudeau for pressing forward determinedly on his constitutional project throughout 1981 and into 1982.

We should always remember how we got it – and who led the charge to prevent us from getting it.