Apr 12
22
The Charter Has Made Us Colonists Once Again
The invention of a Charter of Rights and Freedoms was a backward step that returned Canadians to the kind of political condition they endured under their British masters during the colonial period. Let me explain. At that time those who governed the separate colonies in what was to become Canada were officials of the British Crown and were not responsible to the people but to the legislators, judges, and courts of Great Britain. So for decades Canadians fought hard to bring about “responsible government” – a term which in Canadian political history came to mean that government must be responsible to the elected representatives of the people. They were granted bits of this by the mid-1840s, and by Confederation in1867 the principle of fully responsible government was institutionalized in Canada. Accordingly, the laws made by their representatives in Canada’s Parliament were considered an expression of the will of the people and hence the supreme law of the land. (It bears noting, however, that the founders both of Canada and the United States of America considered even the will of their elected representatives supreme only with respect to new statute laws; to their minds, even statute laws were subordinate to the inherited legal rights, customs and traditions of the English speaking people since Magna Carta).
But this happy 115-year tradition was radically altered in 1982 with the introduction of a Charter that was declared “the supreme law of Canada,” and thus a law over and above the laws of Parliament and all other inherited and customary forms of law. The result has been that since then the will of the Canadian people as expressed in Parliament has been subordinated to and must now conform to interpretations of the law of the Charter. In short, the ultimate authority over the meaning of all existing laws and especially over any new laws made by Canada’s legislators is once again, as in colonial times, held by officials the people did not elect, who cannot be removed by the people, and who are not responsible to the people in any direct way.
In response to this charge, Canada’s judges maintain that parliamentarians still hold the ultimate authority because they can make and re-make laws. However, any balanced scrutiny of the record since 1982 will show an abdication, if not a judicial suppression of legislative freedom and responsibility: Parliamentarians are so fettered by the threat of actual or potential Charter scrutiny that they repeatedly defer to past court decisions or to anticipated Charter rulings prior to creating new legislation. The emphasis since 1982 has shifted from the question of what laws the people wish their elected representatives to make, to the question of what laws their judges will allow them to make.
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