The Charter of Rights and Freedoms was signed 30 years ago Tuesday. Since then, not only has it become a national bedrock, but the Charter has replaced the American Bill of Rights as the constitutional document most emulated by other nations.
“Could it be that Canada has surpassed or even supplanted the United States as a leading global exporter of constitutional law? The data suggest that the answer may be yes.” So conclude two U.S. law professors whose analysis of the declining influence of the American constitution on other nations will be published in New York University Law Review in June.
Posted April 18, 2012 at 5:16 am
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1. Br. Michael wrote:
It’s hard to know where to start on this. But this constitution arises from a totally different concept of government and worldview than the US Constitution.
The US Constitution was designed to protect liberty through the fragmenting of power. The federal government was to be a creature of the people and states. It could only exercise those power specifically given it in its founding document. That is it has no inherent powers in and of itself. This is exactly the opposite of the powers of the states and European monarchies and states of the time in which governments had all powers unless those powers were somehow limited.
Liberty is not the same thing as “right’s contained in the Canadian Constitution. The founders viewed liberty on a range from anarchy to despotism. 0 to 100 if you will. They wanted a central government with just enough power to avoid anarchy but never enough to rise to despotism.
Now look at the right in the Canadian Constitution. Everyone of this don’t limit the power of government to coerce others so secure those right to others. In others words despotism of some to benefit others. Discrimination laws compel some to associate or act to the benefit or wishes of others with which the persons being compelled may disagree. The right to health care for all requires the government to force others to pay for it and participate in it.
Just look at this paragraph:
It fails to protect rights, such as freedom from discrimination based on race or sex, that are considered fundamental in our time; it enshrines rights, such as the right to bear arms, that other nations don’t value; its courts increasingly interpret the American document so perversely – by claiming that it must only be applied as the founding fathers originally intended – as to render it useless as a tool for tackling modern problems.
Why is it perverse that a written document be interpreted to mean what it meant when it was written, or in this throughly post-modern last sentence in the passage do words present simply as a blank canvas on which the reader imposes his/her own meaning? In this case you don’t need a constitution at all, simply a parliamentary system in which the acts of the Parliament are the constitution. The British Parliament is such an example.
What ever else it may do the Canadian constitution does not preserve liberty. It may provided for controlled and limited despotism but not liberty.
April 18, 6:57 am | [comment link]
2. Bart Hall (Kansas, USA) wrote:
The Globe & Mail is a thoroughly leftist paper, so the article is perfectly in character. What they gloss over is mind-boggling. The non-obstante (“not withstanding”) clause gives any province—but it really meant Québec—the right to pass whatever freedom-trashing laws they wish, “notwithstanding” that the right may allegedly have been enshrined in the Charter.
Any “right” that can be eliminated by a provincial legislature is no right at all. Rights in Canada are subject to the whim of government, and are seen to derive from government. It is of little surprise, therefore, that governments in places like Africa would prefer the Canadian constitution to the American one.
Canada’s founding imperative—“peace, order, and good government” is vastly different than that of the States—“life, liberty, and the pursuit of happiness.”
To impose “order” Canada has seen things like the Padlock laws (in which the businesses of political opponents were closed); the imposition of Martial Law; use of the Army in the forcible eviction of Mohawk from traditional lands (it happened in the States, too, but in the 19th century, not the 1990s); seizure of guns; intense prosecution of a columnist for declaring that Islam is a religion of violence; seizure by armed police of seven children from an Amish family who refused to sign a “no-spank” pledge; removal (by police) of all Passover foods from store shelves in the Jewish section of Montréal (during Passover!); and a host of other actions a majority of Americans would rightly understand as utter and absolute violations of liberty and genuine rights.
The 1982 Constitution presents little of value ever worth celebrating. Amending it requires unanimity, and its entire purpose was to enshrine a series of leftist ideas, chief amongst them that “rights” are granted to the people by the government.
As a citizen of both nations, I prefer to live in the one in which (in theory) the powers of the government are granted by the people. The struggle we’re having over that issue is one reason that ammo and gun sales are soaring, and have been for nearly four years. There’s a REASON most governments wish to rule over unarmed civilians. Canada is no exception.
April 18, 8:49 am | [comment link]
3. oursonpolaire wrote:
And here I had for years been labouring under the misapprehension that the Globe & Mail was the voice of a self-satisfied conservative corporate leadership (for US readers, the Star is the left-wing Toronto paper).
April 18, 11:04 am | [comment link]
Bart Hall is in error over the amending formula. Section 38.1.b tells us: “at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.” Unanimity is for amendments on the monarchy, distribution of senate seats, and official languages (Sec. 41). The notwithstanding clause is an attempt to balance parliamentary and charter principles—it has only been used once, for a provincial charter of rights.
The Canadian Constitution was written by Victorians who flourished in a constitutional monarchy with parliamentary government, trying to ward off absorption into the post-Civil War US and to avoid what Sir John A. Macdonald and others saw as basic flaws in the US Constitution—and the monarchy, appointed senate, reservation of powers at the federal level, and so forth, are all indications of this. Pierre Trudeau, Marc Lalonde, Mark MacGuigan, and Alan MacEachan, who were the principal authors of the 1982 document, were practising RCs from JECiste circles, immersed in the personalist and Maritain school, and what many see as left-wing tendencies were in fact a working-out of reform Catholic principles in the structure of a multi-identity constitutional monarchy.
4. Bart Hall (Kansas, USA) wrote:
“Polar Bear Cub”—you raise a valid detail about amendment, yet I suspect you know perfectly that were the 1982 document amended in any manner Québec did not like that province would immediately invoke non-obstante, rendering such amendment moot. Furthermore, only in comparison to the Star could the G&M ever be called “conservative” and only by someone to the left of them. Makes me wonder what you’d call the Post.
More importantly, I most certainly do not consider it a positive point that the framers of the 1982 Charter were all followers of Maritain, who had been warned to stay away from political philosophy by Pope Jean-Paul II himself, which pope, along with other critics, declared Maritain’s Humanisme intégrale to be a dangerous—if not heretical—work.
That Maritain also corresponded somewhat regularly with Saul Alinsky ... says everything you need to know about him and his followers, and explains fully why the Canadian charter is completely ill-suited to any people actually cherishing liberty.
April 18, 1:03 pm | [comment link]
5. oursonpolaire wrote:
The Post—these matters are subjective, but I would call it a well-written conservative paper, much better edited than the Globe. Note that I called the G&M a conservative corporate leadership paper. Normally, I do not read the Star. My daily paper is Le Devoir, but mainly to exercise my French.
April 18, 1:35 pm | [comment link]
I would also challenge your statement about Québec and the 1982 revisions. Québec did not like very many of them and its government (and élite) was specific about this. However, they were not willing to use the notwithstanding clause against a widely-accepted Charter for fear of the electoral consequences (and Trudeau knew this). Other provinces have taken note.
The francophone authors were from JECist (Jeunes Étudiants Chrétiens) circles and were perhaps more influenced by Mounnier than Maritain in their youth. Maritain, of course, was more reflective of the 1950s and 1960s and, it is often claimed, was considered by Paul VI to be a candidate for the first lay cardinal in centuries. I will leave my RC friends to discuss how heretical he was.
As one who, while in an extremely junior gopher capacity, was near many of these discussions (and sat in on a few, including one with Cardinal Carter, during the constitutional discussions), I thought it useful to point out that there was a strong Xn element in the political philosophy of the drafters. The only non-believers in the inner circle were John Roberts of Toronto and Lloyd Axworthy of Winnipeg. As well, it is helpful to remind US readers that the roots of Canadian democracy are different—since 13 of the 15 American colonies went their own way, the northern provinces consciously followed another path, giving the churches a leading place, avoiding enlightenment principles and republicanism, and proceeding from an assumption of the state’s natural role in society, with continuity symbolized by the Crown. 1867 and 1982 are natural outgrowths of that process and do not neatly fit into the categorizations used south of the border.
6. Bart Hall (Kansas, USA) wrote:
To say Québec did not care for much of the 1982 Charter is an understatement. You are correct that they chose not to exercise non-obstante so early in the game, and chose a different route to attempt the same thing, as represented by the horrible drubbing administered to the Trudeau gang in the 1984 elections.
I was vice-president of a Tory riding committee for that election—in a 95% francophone riding—and there was absolutely no doubt what was driving the vote. Ditto 1988, and when Mulroney’s crew continued not to address to preponderant constitutional issue in Québec politics our MP and plenty of others bolted to form the Bloc.
Eventually the Bloc became politics as usual, which is why there are now so many NPD MPs from Québec, trying to figure out how to fit together time in Parliament with their university class schedules.
Two key things:
a) Canadian constitutional politics will always be a goat rodeo because whilst English Canada views Québec as one partner of ten, Québec views itself as one partner of TWO.
b) Whilst a generation later I continue to condemn the 1982 thing as quasi-socialist tripe inimical to liberty, which places me to the right of everywhere but southern Alberta, Québec continues to grumble because it’s not socialist enough and provides too many guarantees of what in Canada passes for liberty.
I was once asked to be my party’s candidate for the legislature, but I turned ‘em down because my, er, “constitution” is just not strong enough to tolerate all the BS of politics when essentials liberties are not even respected, let alone guaranteed.
April 18, 2:49 pm | [comment link]
7. Terry Tee wrote:
A fascinating exchange from two people who clearly know what they are talking about. Bart - I do not doubt what you say for a minute but I was startled to read the reference to kosher foods being removed. I wanted to know why this bizzare act took place. Can you enlighten me?
April 18, 5:04 pm | [comment link]
8. Terry Tee wrote:
Oops. For bizzare read bizarre.
April 18, 5:04 pm | [comment link]
9. Deep Freeze wrote:
We’re too busy being happy to worry about opinions south of the border, and, thanks to climate change, we’ve been enjoying great weather (oops, couldn’t help myself).
The article focuses on the charter, but the conversation has centered around the constitution more broadly. Any teeth-gnashing observations about the former?
April 18, 6:39 pm | [comment link]
11. oursonpolaire wrote:
Jack Silverstone’s excellent note on the Québec Jewish community is a bit outdated in terms of its demographics. The francophone Sephardic community, primarily Moroccan but with Egyptian and Mesopotamian components is now about a third of Québec Jews. School boards are no longer RC/Protestant and have been reconstituted as language-based school commissions; there continues to be debate on the teaching of RC practice in schools, and “historically confessional” schols retain their symbols and religious practices. This situation is worth a post in itself. In Québec, the Canadian Jewish Congress has been pretty effective at dealing with outbreaks of nationalist nonsense.
As far as Deep Freeze’ request goes, I will let others take care of it. But I would quote one singular conversation I had with a seriously ancient Russian Orthodox monk (who had taken the veil at the hands of Saint John of Shanghai when he was in Harbin). He was introduced to me at a lakeside garden reception for the minister of the Crown for whom I was then working. My friend introduced me and was speaking of the then-lively constitutional discussions. The monk turned to me and said the Providence and Our Lady had determined that North America be divided between two different systems, so that we could learn from each other and be continually improving. We should be grateful that we are blessed with each other. Every now and then I think of him.
April 18, 7:26 pm | [comment link]
12. Bart Hall (Kansas, USA) wrote:
I would add (especially for American readers) that the sort of back-and-forth on display here is common currency in Canada, where politics and political philosophy are often debated with passion, love, and respect. In Québec it borders on the national pass-time. Political differences are often the source of deep friendships.
By comparison, the quality of political discourse in the States is most often absolutely abysmal. Good political discourse and debate is one of the things I really miss as a result of living on this side of the line, and it’s one of the things we definitely could learn from Canada.
April 18, 11:07 pm | [comment link]
13. oursonpolaire wrote:
I would agree with Bart Hall. No matter our differences, we all have to help shovel each other’s driveways. Mind you, he’s still wrong.
April 19, 12:06 am | [comment link]
14. Deep Freeze wrote:
And, concerning Quebec, there’s something uniquely Canadian about a place where injustice against a hockey player (Maurice “Rocket” Richard) was a spark for a political/cultural/religious revolution.
April 19, 12:52 am | [comment link]
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