Is the Canadian Charter of Rights and Freedoms Antidemocratic? Since the induction of the Canadian Charter of Rights and Freedoms, Canadians have been all about their “freedoms”. Should women be allowed to get abortions without criminal persecution? The Charter is a liberal document, meaning it sets out fundamental notions about the rights of an individual. But what it comes down it is what rights does a person have, and how are they protected from the arm of the state. The charter was designed by Canadian MP’s, lawyers, and judges.
In the most famous Charter decision to date, The Queen v. Morgentaler, the case dealt with the issue of abortion. Parliament thought they had legislated a compromise solution to the problem with that it could be done but only in accredited hospitals on the recommendation of a therapeutic abortion committee. Otherwise it was considered a criminal offence. The end decision was that the charter was in offence of section 7 (Everyone has the right to life, liberty, and security) and that it could not be sustained under section 1 (basically a loophole in the system).
Some argue that the constitution makes everything about “me”, and has made the Canadian political life more “American”. Everything has turned away from the collective, and more about his or her own rights. Professor Martin even went as far to argue that since 1982, unemployment, family breakdown, and the economic debt from welfare programs can all be attributed to the Charter. But to a certain degree, that’s not a fair statement.
How can something like economic downturn be directly accredited to a person’s rights? It would be policies made by Parliament that would do that. Other political scientists are pointing out that the charter only benefits big corporations, and not your everyday Canadian. Which to a degree is true, Big M Drug Mart used the right of freedom of religion to sell products and make money on Sunday, and Southam Press used section 8 to prevent the government from prosecuting it for using monopolistic practices.
But charter cases are expensive, and they tend to go into the long run. Something that big corporations can afford to do and the average Canadian can’t. The Charter is set out to protect a person’s rights. And how Judges interpret the charter will determine its effectiveness. A reminder though that when sceptics examine judicial review using our charter and point out court decisions, they should be doing it against the current state of parliament today.