by Gerry Nicholls
I hate to throw cold water on all the hoopla associated with 30th anniversary of the Charter of Rights and Freedoms, but it should be remembered that this document has sometimes failed to protect individual rights.
There are four cases in particular that spring to my mind:
Forced Union Dues
Merv Lavigne was a community college teacher who turned to the Charter to protect his right to free association. Lavigne objected to the fact that a portion of his forced union dues were being used to finance political causes he didn’t support, such as the NDP. Since the Charter guarantees all Canadians the right to free association, Lavinge reasoned it should also protect a citizen’s right not to associate. Seems to make sense. Yet, the Supreme Court of Canada didn’t agree. In 1991, the Court ruled forcing unionized employees to fund union boss politicking was not infringement and even if it was, it was an infringement that could be justified in a free and democratic society. Apparently individual freedom takes second place to helping union bosses.
Election Gag Laws
In 2000 the federal government enacted an election gag law, which imposes severe restrictions on how much money citizens can spend on political advertising during elections. Under this law Canadians cannot freely and effectively participate in election debates. They cannot freely use ads to support or oppose a party or candidate, they cannot freely use ads to promote any issue that might be associated with any party or candidate. Clearly this is an infringement not only on free speech but on the most important kind of free speech: election speech. Perhaps this is why Canadian courts had shot down similar gag laws in 1983, 1993 and 2000. Yet, amazingly in 2004 the Supreme Court of Canada gave the gag law its stamp of approval. In the process, it drove a knife through democracy. Now political parties have a virtual monopoly on election debate, everybody else has to keep quiet.
Black out Law
On federal election night 2000,British Columbia computer software developer Paul Bryan posted real time voting results on his website. No big deal, right? Wrong. In fact,Bryanhad violated Section 329 of the Canada Elections Act, which bans the “premature transmission” of election results. Bryan had purposely violated this law because he believed it amounted to censorship. Why shouldn’t a citizen be allowed to post information on the net? He also believed it violated the Charter guaranteed right of free expression. And so after he was charged with breaking the law, Bryan challenged it in the courts. Unfortunately, in 2007 the Supreme Court of Canada declared the black out law was constitutional. Why? Because they ruled it was necessary to infringe free speech to ensure “information equality”. Informational equality? Sounds like something the judges just made up.
One chief right not protected in the Charter is the right to own private property. This became clear when Dave Bryan, a Western grain farmer, challenged the Canadian Wheat Board monopoly in the courts. The monopoly forced Bryan and other farmers to sell nearly all their crops to the Canadian Wheat Board. He thought this was wrong and infringed on his rights to enjoy his own property. So he took his case to court. However, in 1999 theManitobacourts dismissed his claims ruling “the rights to ‘enjoyment of property’ is not a constitutionally protected fundamental part of Canadian society.” So much for 700 years of British Common Law Tradition.
My point is the existence of a Charter in and of itself does not guarantee or protect our cherished democratic rights. Politicians can still pass bad laws and judges can still uphold them.
Freedom is best protected when as a society we understand and appreciate why liberty matters.
(Gerry Nicholls is editor of Freedom Forum.)