Queen Elizabeth II signs the proclamation of the Constitution Act, 1982, on the steps of the Parliament Building in Ottawa on April 17, 1982 (Photo: Government of Canada).

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

The English-language version of the Canadian Charter of Rights and Freedoms (Image: Government of Canada).

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. 

Prime Minister Pierre Elliott Trudeau (Photo: Public Domain).

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. 

Charter critic Ted Morton, the worst premier Alberta never had (Photo: David J. Climenhaga).

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.”

Former Prime Minister Stephen Harper (Photo: Remy Steinegger, Creative Commons).

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.

Charter critic Preston Manning (Photo: David J. Climenhaga).

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.

Danielle Smith at the start of her political career (Photo: David J. Climenhaga).

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. 

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30 Comments

  1. It should be noted that Skippy Pollivere went onto his favourite social media platform and proclaimed his undying support for the Charter. Keep in mind that this is the same guy who went unto his favourite social media platform and feverishly promoted Diefenbaker’s ‘Canadian Bill of Rights’, reinforcing the notion that that document is Canada’s true constitution and not that that weird document that PJMT’s daddy secured. (I don’t mean Fidel Castro, btw.)

    As laudable as the document is, the presence of the Notwithstanding Clause within it is perplexing. Quebec has seen fit, in defence their unique cultural identity, to invoke the Clause on any number of occasions. It might even be said that every piece of potentially contentious legislation has a line item that suggests that any court challenges to this legislation will lead to the activation of the Clause and ensure that the legislation is upheld. As much as Quebec’s unique cultural identity should be preserved, the use of the Charter as a last resort measure may find appeal among certain partisan groups who just want to trash anything resembling rights and freedoms. Saskatchewan has used the Clause in a punitive action to support contentious legislation. The Ford government in Ontario intended to use the Clause against anyone opposing Ford’s punitive action against various partisan interests in Toronto, so it seems that CONs do have a love/hate relationship with the Charter.

    It seems that CON’s only like the Charter when they can dive into the Notwithstanding Clause whenever they like and hack away at anyone’s rights and freedoms. After the Delwin Vriend decision by the Human Rights Commission, supporting the case that his rights were indeed violated by his employer, ole King Ralph Klein was seriously thinking of using the Clause to sink that decision. He was stopped because, as His Majesty put it, was deeply troubled by the letters defending such an action that were filled with the most disgusting comments about gays and lesbians he’d ever read. Okay, so maybe Klein really did have a conversion at Damacus moment and decided that this part of his base he was willing to deny them their moment of triumph. However, this weirdo contingent is still there and as strong than ever, thanks in no small to Kenney’s constant coddling of this element in his base. Kenney has yet to deliver what they really want, so we’ll have to see how determined they are to give him the boot.

    Former BC premier Christy Clark has publicly said the only part of the Charter she likes is the part with the Notwithstanding Clause and she would have used it everyday if she could get away with it. The notion that the Clause is a last resort measure — a last resort for what I just don’t understand — exists in certain minds as a hammer to smash anyone who gets out of line too often, shouts too loudly, or complains too much.

    I think the Elder Trudeau privately called out Jean Chretien for even thinking of the Notwithstanding Clause. Chretien offered the Clause in the infamous ‘Kitchen Negotiations’ that secured enough provincial support for the Charter. Chretien’s response was something along the lines of “I gave them the Notwithstanding Clause so you could have a Constitution.” It truly was a Devil’s Bargain.

  2. You cannot trust Reformers to look after anyone, other than themselves, and their rich corporate friends. While there are those amongst us who may not always agree with Justin Trudeau, we know we would be worse off with Pierre Poliveire in charge. Pierre Poliveire’s friend, the head honcho of the UCP, and the UCP itself, are making a horrific mess in Alberta too. We have Brian Jean and Danielle Smith entering the UCP party, and they can’t be trusted either. These people will say anything, and people blindly support it. They don’t create jobs, but they kill jobs. Nor do they support the collection of proper oil royalty rates, and proper corporate tax rates, the way Peter Lougheed did. Also, they don’t care about the environment. Public education and public healthcare are things they don’t support either. The less fortunate and the seniors also have to suffer. Peter Lougheed had a known disrespect for Reformers, and it should be easy for people to see why, but unfortunately, many don’t.

  3. The charter means nothing while the Liberals destroy the country. No home ownership for Canadians. No getting ahead, but come on in immigrants! Buy ALL our houses. To hell with the useless charter and to hell with canada. Say bye to Alberta. We’re leaving this BROKEN confederation.

    1. Some ten percent of the homes in this country are sitting vacant, we can hardly blame immigrants for that. Why do you think you speak for anyone other than yourself ? What would alberta do, join the Americans ? How’s that working out for them ? Failed state much ?

      You know who leaves when they don’t get their way ? Toddlers. Grow up.

    2. That’s great news! But, if I may ask, when can we expect to actually see this exodus? The reason I ask is that, in my experience anyway, many people who express similar views to yours and announce that they are leaving are, in fact, still here. Some of us find this somewhat disappointing to be honest. But to be fair, you may not be aware that one of the freedoms that we enjoy in this country is the freedom to leave. At any time really and without penalty.

      So now that you know that the option is available, allow me to suggest this: Go. Go now. Don’t delay, don’t hesitate and don’t look back. Just go. Today if possible and take as many of your friends with you as you can. Because if you believe, as your name implies, that Canada sucks then I have no doubt that you would be much happier in a place like Texas or Alabama. Maybe even Florida. And just think, no more snow shoveling! What’s not to like? And I feel confident in saying that those who choose to remain behind will notice an almost immediate improvement in their own quality of life. It’s the definition of a win-win scenario.

      So, seriously, what are you waiting for? Just go.

    3. @Canadasux:

      I wonder if you are suffering because of your economic situation. If my intuition is correct, you are far better off under the Liberal, or NDP, model of society, both of which favour a more fair redistribution of income, and social benefits which lift everyone’s boat. “Immigrants”, which I take as code for “non-white Canadians”, are not and never have been the problem. Many of those coming here are escaping horrific situations of war and instability in their home countries; they have lost everything.
      I’m proud that we give them refuge. What if it were you and your family? Apart from refugees, Canada has quite a strict quota system for immigration.

      No, the bigger problem is an economic system based solely on profit and which ignores the extreme disparities that result, a system defended by the CPC with increasingly Americanized rhetoric about “freedom”. The political right (“Conservatives”) are not interested in helping you, or anyone, really. They may sound like they’re defending white people and “traditional values”, but it’s just pandering, a way to get into power. Their aim, made explicit by Stephen Harper, is to model this country ideologically after the US, for the benefit of the corporations who fund them. You count as nothing to them. May I remind you that many Americans, and of course the most vocal Republicans and Trumpers, think we are socialist for having health care. Take a really good look at the hot mess down south. If you truly think you’d be better off under that system, good luck to you. Think again, think better.

      DR
      Toronto

  4. I am grateful each day that I live in a free and democratic society such as Canada.
    We have our faults, as witnessed in our own history, but we can make things better by being decent human beings with a conscience and a will to do so.
    I’ve enjoyed the best life I’ve been offered to live. With all its politial problems, autocratic rulers/murderers and greedy global corporations, I will still believe in a free and democratic world.
    Imagine a guy like Stephen Harper and his tribe running the global affairs?
    Stephen Harper would have had us all quite happily go back to the kind of life where we have no say in how we wish to be governed and how OUR assets are distributed and OUR land protected in that process. Instead, right wing ideologies make an effort to promote and extend the power to corporations instead of those who just want to live with dignity, and raise their children to respect others, and build trust in a safe community, country and around the world.
    Everything in the world is not perfect, it never will be. But decency and respect trump tiereny.
    If we don’t start educating ourselves about these events in the world where democracy has been trampled on, and recognize that history can very easily repeat itself through complacency, well, we stand a very good chance we will loose those rights and freedoms enshrined in that important document that bring law before corporate greed.
    It can happen here and those that see plunder and monetary gain as their reasoning, will not give a damn about who they see below them, as long as the power rests at the top where they think they are.
    The next US election is extremely important for us here in Canada, pay attention.
    As PET once said “being next to the USA is like sleeping with an elephant, you’d better hope it doesn’t roll over” (or something like that…) (correct me if I’m wrong please)
    Do something nice for someone today, or maybe just wear a smile for us all.
    Enjoy your life in the freedom you have, and keep working hard to make sure EVERYONE in this land enjoys it and prospers by it too.

  5. Thanks for this.

    Unfortunately thoughtful and nuanced discussion here will be overwhelmed by the strident voices of Morton, Black, and, increasingly distressfully, Poilievre.

    Perhaps Trudeau will continue to galvanize the RWNJs attention sufficiently that they self-attenuate, stewing in their own bile, and civilization can continue undeterred.

  6. Opposition to the Charter, at least during the foundational years of constitutional reform in the ’70s and’80s, didn’t just come from the right. Others with more historical knowledge should comment, but I’m old enough to remember that SK Premier Allan Blakeney was pretty critical of the Charter, and feared putting too much power in the hands of judges.

  7. I have found it quite rich to see right-wing politicians going on & on about “freedom” and Charter rights when conservatives have always been, and still are, the most vociferous opponents of the Charter. Let’s also remember, true freedom requires agency, and far too many Canadians lack that essential factor they need to truly exercise their freedom.
    – What is “freedom” to a low-wage service sector workers who has been forced by economic circumstance to continue going to their place or employment and be exposed to the current global pandemic, while middle-class, white-collar workers have been able to work from home for much of it?
    – What is “freedom” to a minimum wage earner who has just been given eviction notice by their landlord, because the landlord wants to renovate and thereby raise the rent, in what is notoriously known as a “renoviction”?
    – what is “freedom” to an immunocompromised individual who cannot leave their home because public health measures meant to keep us all safe have been withdrawn, and the deadly COVID virus is running rampant and unchecked in the populace?
    – what is “freedom” to an LGBTQ2S+ couple in a rural community who want to get married, but can’t find anyone to officiate their wedding due to “conscience rights”?
    The Charter still requires defending. #NeverVoteConservative

  8. My understanding is that within six months the Charter replaced the US Constitution as the most copied constitutional document in the world for those countries engaged in this process.

    Not certain if this is still the case.

  9. Lord Almost, former citizen of Canada and loud mouth critic calls the Charter “a nuisance that has turned our under-qualified judges into feckless social tinkerers.”
    The former jailbird should return permanently to the land that put him behind bars and whose under-qualified feckless social tinkerers are about to overturn Roe v. Wade with the eventual goal of making abortion a federal crime in his beloved United States.

      1. Good idea, David. Almost’s full title is Lord Black of Crossharbour.
        Crossharbour is a metro station in East London. Rather than yapping about Canada’s Charter of Rights and Freedoms he could busy himself on the platform counting railway cars going back and forth, doing something useful for a change.

  10. Sometimes it seems like Conservatives are preoccupied in fighting the battles of the past – the Charter of Rights, the carbon tax, abortion, same sex marriage to name a few.

    This might explain why Canadians are not very enthusiastic about returning them to power. Fewer than a third of voters support them and if anything their support seems to be flagging despite declining enthusiasm for the Lberals who have their own problems.

    So, I suspect smarter Conservatives will stop talking so much about these things which motivates the base, but turns off more moderate votes. Of course, that doesn’t mean their views will have changed, just that they have become more stealthy in getting back to power.

    1. Well Dave, then they should re-brand themselves as the Regressive Conservatives. As for smart Conservatives, at one time there were those who I politically opposed but had some grudging respect for because of their intellect. I don’t see that in today’s Conservatives, all I see are a bunch of liars.

  11. Even though I am from the States, I am entirely convinced that the CANADIAN CHARTER of RIGHTS and FREEDOMS is considerably more precious than the UNITED STATES BILL of RIGHTS. Evidently, the CHARTER is Canada’s Gift to the World.

  12. Ahhhhh, now you mention it, it’s starting to make sense…

    …the Messenger post I got from an old friend of over forty years whom I’d put on ice on FB just about the same time as the “United We Roll” truckers’ protest set out across the Prairies to Ottawa in 2019: he was sending me odious “Proud” links and reciting rote, hateful comments about anything Trudeau or Liberal. Well, I guess he finally figured out I wasn’t getting his tripe (neither are most of our mutual friends who’ve also cut him off for the same reason—hardly any are even Liberals).

    So, clever fellow, sent me the “Northern BC to Ottawa People’s Freedom Movement” link by the alternative platform—by which I suspect means northeastern BC, the Great Plains part of our province which is culturally more like Alberta.

    The fact that my old friend lives on The Big Island of Vancouver is a revealing tell that reminds the modern phenomenon which propagates puerile spew so successfully to bored, bigoted bachelors scrollin’-n-trollin’ the net in their recent retirements— virtually anywhere in the country, or even the world. But I don’t think he’s gonna jump in his van and head Back East, or expects me to (unless he’s more far gone than I realize). Rather, I suspect he wants me to support this “Proud” call with money or some kind of “virtue signal.”

    I declined. He called me “Prisoner.” I cited the counter-convoy protest in Vic where cyclists blocked the big rigs from getting to the Legislative Assembly and a lady paraded a placard that said: “Honk if Your’e an Idiot!”

    He collected himself and attempted reason: apparently this convoy is about “Trudeau made a mistake in England” and “loopholes in the Constitution” that, “with the proper signature…give the country to the people, as shareholders we would have it good,” ending with a comforting “don’t be scared.”

    I’ll spare you my response to that, but recount that his rejoinder was that I “have been controlled, so sad…” And finally that I needn’t “sound off” the way I did. Really, I don’t get why he thought I’d be into anything like that. But that’s the effect: he should know me better —but seems to have forgotten.

    My better half—who only met him once, a long time ago—asked if he’s always been like that, and I had to admit that, yeah, it’s probably not too surprising. Still I was disappointed in him, even while knowing that he’s too stubborn to listen to anything but his Rebel Media shite.

    On the whole, it’s sad—pathetic, really— that MAGA types continue to beat their chests about gaming the system like tRump insisted his VP Pence could do so easily, like his January 6 insurrectionists thought they could do in the US Capitol to overturn Biden’s election—and like the “Freedom Convoy” thought they could get rid of the Trudeau Liberals last February and form a government with the Governor General. They think the partisan neo-right’s moribundity is nothing more than a technicality.

    So now they’re constitutional experts—I guess, notwithstanding claws.

    Thanks for reminding us of this momentous anniversary and our admired Charter of Rights.

  13. Judge does something I agree with = “We are a nation of laws.” (delivered with eyes closed, chin raised, arms folded across chest and the vapid smugness of JT at his worst).

    Judge does something I disagree with = “What’s the point of having elections when activist judges go around thwarting the will of the Canadian people?” (delivered with all the bad-faith high dudgeon of PP at his worst).

  14. “Traditional approach of common law” my eye. Although I’m definitely a fan of the common law tradition, that tradition is far more vulnerable to what is called “judicial activism” (= decisions conservatives don’t like) than any constitution or charter. The Supreme Court has been extremely cautious in NOT creating law from the bench, as far as I can see.

    You know, I’m 66, old enough to remember a time when you could vote Progressive Conservative without laughing apologetically afterwards and explaining that you’d recently been thrown from your horse at Woodbine racetrack. It was just something you did in alternate elections so you wouldn’t get bored. Conservatives appointed the first female Cabinet Ministers both federally and in Ontario! They stayed away from social engineering, that practice they accuse progressives of, which I guess just proves those Freudian theories about projection.

    I’m counting on Canadians’ inherent sense of being “the other;” we are the people who said “no” to throwing that tea into the harbour. We said “peace, order and good government.” We LIKE government. And we are more than just “not American.” We are one of the last, if not THE last, bastion of liberalism worldwide, that concept where you keep what’s good, throw out what’s not working, and incrementally work towards widening the reach of justice, peace, dignity – you know. Democracy. Democracy without inclusiveness, dialogue, compromise and consensus? Meaningless.

    And, I’m increasingly grateful for our Parliamentary system. If we’d elected a Trump, he’d have been gone within the week through a vote of no confidence. So much for American revolutions. Happy Canada Day (I start celebrating early).

    DR

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