Arjun Singh: Left wing values have invaded Canada's legal system and diminished our charter rights
September 23 2021
Re-Printed without permission.
By all accounts, vaccine passports are here. Quebec, with the most provincial chutzpah, first introduced them, and B.C. followed suit. As have Ontario and Alberta, after Doug Ford’s U-turn from his “Hard no” earlier this year and Jason Kenney’s similar opposition . Outside government, scores of businesses are mandating vaccinations for employees, with proof being required — else, they be terminated.
One would think, in governments’ cases, that the law would safeguard citizens’ freedoms. Indeed, the Charter of Rights and Freedoms states that Canadians have the “freedom of conscience and religion” (Section 2a), freedom of movement within Canada (Section 6) and “equal protection … before the law” (Section 15). At the very least, this would prevent the imposition of vaccine passport requirements on citizens — vaccinated or otherwise — for travelling, let alone while accessing basic services: for most charter rights are fundamental. Quebec’s programme and the Trudeau Liberals’ recent federal vaccine mandate for flights and trains, thus, ought to be dismissed.
But this is Canada: where, for years, left-wing Liberal values have slowly invaded our legal system. This was true for Trudeau’s father, Pierre Elliot, as it is now. Hence, in 1982, when the charter was introduced, its first section included the following proviso: “The Canadian Charter … guarantees the rights and freedoms set out subject only to reasonable limits … as can be justified in a free and democratic society.” In essence, the charter rights of anyone may be limited for what the state considers “reasonable.”
By itself, this clause is only partly dangerous. Absolute freedom, in any context — especially if causing physical harm — is undesirable; as the ever-pithy Oliver Wendell Holmes Jr. said, “the right to swing your fist ends at the tip of my nose.” But, as most would agree, allowing the government to judge whether its own acts are “reasonable” is, itself, an invitation for power to abuse such privilege. From Quebec’s strict curfews to Ontario’s police crackdowns, the pandemic and its oppressive responses in the name of “science” have laid that truth bare.
In response, one would expect the courts, upon petition, to step in and stop government overreach, being the constitution’s supposedly “non-partisan” referees. Until 1986, in Canada, that was true — until left-wing jurists, after rewriting the law, captured the judiciary that interpreted them. That year the Supreme Court, in a unanimous decision by Trudeau appointees, established the Oakes Test in R. v. Oakes to determine what restrictions on charter rights were “reasonable.” Among others, it allowed the curbing of charter freedoms in the name of “a commitment to social justice and equality” and “respect for cultural and group identity.”
With this decision, a faction of activist judges — seeing the constitution as a ‘living tree’ to be pruned without the people’s consent — reset the foundations of freedom overnight, bending them towards progressive politics. Instead of having minimal restraints for public order, all charter freedoms could now be legally impeded in the name of contested left-wing concepts like “social justice” and protecting “group identity.”
Worse, neither did the court define what these terms meant, enabling the left — via its dominance of social science academia — to influence their meanings, suiting the moment’s political objectives. As its late Chief Justice, Antonio Lamer, himself said, Section 1 empowered judges to “make essentially … a political call.” In effect, the constitutional “referees” changed the rules mid-game, to ensure their side would always win.
Thus, with Oakes, the dangers of Section 1 were fully unleashed, and have since beat a toll on Canadians’ civil liberties — capturing our constitution for the supremacy of “woke” social mores. “Whoever would overthrow a nation must begin by subduing the freedom of speech,” said Benjamin Franklin; and, true to form, it was one of the first casualties. In the Keegstra and Andrews decisions, the Supreme Court used Section 1 to allow the criminalization of speech “inciting hatred” — an ambiguous offence, at best, which effectively curbs free speech for the sake of hurt feelings. Once more, in the Little Sisters case, Section 1 rubber-stamped the Chretien Liberals’ banning of LGBTQ books’ import for their “obscenity.” This spate has continued, with governments and courts in concert over the years using Section 1 to curb the presumption of innocence until proven guilty (R. v. Stone), conservatives’ participation in elections (Harper v. Canada) and, most recently, to ban travel by citizens during COVID-19 (Taylor v. The Queen).
In defending such overreach on the charter, the progressive establishment has often asserted the notion of “collective rights” as the reason for restraining individuals, e.g., “safe spaces” precluding free speech to avoid public offence. There are few greater absurdities than this; “rights” exist to protect individuals and minorities from tyranny of the majority, which — with strength in numbers — needs no further safety in a democracy. By claiming a “collective right” of any kind, the Canadian left turns the very notion of rights on its head. It is legal fiction at best, and a neo-Marxist praxis at worst — a desperate attempt to stir up “class conflict” between the majority and minority where none ought to exist.
In the future, it’s highly likely that Section 1 will be used again to uphold encroachments upon citizens’ rights — from vaccine passports to online censorship (e.g., Bill C-10) and others. Canadians must, hence, stand on guard for thee and expunge this threat — regardless of the high bar for constitutional change. If Section 1 is the end of charter rights, we must end it, first.
Arjun Singh is a recent graduate of political science from the University of Toronto.