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Rex Murphy: You could drive an 18-wheeler through our Charter of Rights and Freedoms

April 19 2022

Re-printed without permission.

The year 2022 is not a good one for celebrating the Charter of Rights and Freedoms.

We mark the 40th anniversary of that celebrated instrument this week. Over the years it has been held up as the very jewel of the Canadian Constitution. The one great bulwark for every single citizen’s civic integrity. The very banner of Canadian democracy. The text of our liberties. A great, invulnerable wall against the encroachments of government on the day-to-day lives of Canadians.

Canada’s Magna Carta.

As the week began, and even a day or two before, we saw Canadian politicians, especially those high up in the Liberal party — which takes the deepest pride in having brought the Charter into being — celebrating its birth, flooding Twitter with hosannas for this most central of Canadian documents.

As is only right, the son of the prime minister who installed the Charter offered the most extended praise: From Justin Trudeau: “With a few strokes of a pen 40 years ago today, Canada’s Charter of Rights and Freedoms was adopted. Built around our shared values of equality, justice, and freedom, it protects the rights and freedoms that define who we are as Canadians — and brings us closer as a country.”

That’s very strong praise — “brings us closer as a country.” Even stronger praise — it “defines who we are as Canadians.” Those are words of near worship, and deserved, if indeed the Charter has lived up to them. If, beyond question, it has been the sleepless guardian and adamantine shield of the liberty of every Canadian.

But has it been? Have there been any instances in, say, quite recent years, where the Charter has been absent or removed from its grand functions? Has Canada experienced some interval when all the protections so solemnly proclaimed and grandly stated in this wonderful document have been — shall we say, sidelined? And, strange as it might be to say this, but sidelined or disregarded with very little resistance, explanation or even notice?

Well, yes, there has been such an instance, a period of two full years when a vast sweep of the most basic rights of every man, woman and child in Canada were suspended, circumscribed or withdrawn. Naturally I’m referring to the COVID regimens. During this time, all governments — federal, provincial and municipal — and numerous institutions and companies for that matter (I’m thinking particularly of school boards) set out grand rules on how people should act, where and in what number they could meet, what they must wear, and how far apart they must stand.

Those rules cut deeper into our everyday lives than we have ever experienced in this country. They governed the most intimate and heart-wrenching of experiences — when people could or could not visit ailing, or even dying, loved ones. The images from the early COVID days of sons and daughters standing outside the windows of nursing homes, hand-signalling to parents they were not allowed to be physically near, were both painful and present to this very moment.

Now let us make the obvious point. A new disease, a pandemic, will reasonably justify measures for the health of all. A government that didn’t act during such a crisis would be rightfully condemned. But the suspension of so many rights, so quickly, in most cases without elaborate or even minimal debate, the shifting and reverse injunctions, the exceptions — big stores can stay open, small must close — the designation of essential and non-essential, the whole great web of limitations and restrictions — all this just happened.

During COVID the Charter was silent, less a shield than a thin veil, and hardly even mentioned by the various governments that so readily ignored it.

And then, we had another experience. The bald, imperious declaration of the Emergencies Act during the truckers’ protest. Now this was not a pandemic. It was a protest, a gathering of citizens expressing their concern over government legislation. The act was a sledgehammer brought down from a woeful height without the slightest testing in court, and fully in opposition to the Charter’s guarantees.

Huge fines were announced, people were charged and given no bail, the private transactions of citizens were investigated, bank accounts were entered and frozen — and these were the invasions of our rights that we know of.

What calls were made on our famous charter during this period? What were the noble words about the charter then — that it “defined us as Canadians,” that it “brought us together as a country?” The truckers’ protest was the one episode, par excellence, in which the charter, if indeed it was a Charter of Rights and Freedoms, should have been called upon. It should have warranted real debate in Parliament. But the Emergencies Act blasted a hole in that sacred document you could drive — do I dare the metaphor, yes I do — an 18-wheeler through.

All in, this is not the best week, or the best year, for those who have waltzed around and through the Charter of Rights and Freedoms, to be Twitter-singing its praises. They would be better off trying to explain why they worship the document when it suits them, and ignore it when it doesn’t.


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