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Canada’s Charter of Rights and Freedoms was always meant to be revolutionary

Many Christians are puzzled by the decline of religious freedom in our country. Time after time, in conflicts involving homosexuals or abortion rights activists, Christians seem to lose. For example, we’ve seen people who voice opposition to special status for gays being harassed by “human rights” commissions. And recently we’ve also seen university pro-life groups being prohibited or severely restricted. Why aren’t Christians’ religious freedom or freedom of expression protected in these cases?

After all, the Canadian Charter of Rights and Freedoms guarantees both of these freedoms — religion and free expression. So when Christians lose out, it’s because our Charter freedoms are being ignored, right?

Well, maybe not. What if the Charter was adopted as part of a strategy to fundamentally change Canada? What if the framers of the Charter saw the historically Christian basis of Canada as an obstacle to be removed? If this were the case, then favoritism towards the opponents of Christian views would be a natural consequence.

Not a conspiracy theory

Now, at first glance that might sound like a conspiracy theory or something — a secret cabal plotting to shift Canada’s historic foundation. But by definition a conspiracy occurs in secret, and this was never a secret. Some of the Charter’s early proponents supported it because they wanted to make significant changes to Canada, and they said so openly. It wasn’t secret, so it wasn’t a conspiracy.

Until 1982 Canadians had enjoyed considerable rights and freedoms under the traditional British system of common law. Certain rights and liberties were recognized by the courts despite their lack of explicit mention in the constitution. This British method was strongly influenced by a Christian worldview because Britain had been an explicitly Christian nation for hundreds of years. (Queen Elizabeth, for example, swore in her 1953 coronation oath to “maintain in the United Kingdom the Protestant Reformed Religion established by law.”)

Thus to reject this system was to reject the special place that Christianity had in undergirding Canadians’ historic rights and freedoms. With Christianity’s privileged position gone, the Christian perspective just became one among many views, and one that was clearly out-of-favor with Canada’s elites.

A sudden secular shift

Most people who supported the entrenchment of the Charter in the early 1980s simply thought that human rights should receive constitutional protection, and the Charter was a way of doing that. There’s nothing sinister about this idea since it makes perfect sense. Don’t you want your rights constitutionally protected? Of course, we all do. That’s why the Charter was widely popular at the time of its drafting, and it’s probably even more popular now. Christians commonly cite the Charter in defending their own positions.

But what most people didn’t understand was that the worldview underlying the Charter was an alien thing. The changes that have been wrought in Canadian society as a result of court decisions (and political decisions) based on the Charter are the natural consequence of that document. Conservatives like to blame judicial activism for these changes but that’s not fair to the judges. The judges are basing their decisions on the intent of the Charter. Now, they do so happily, because they support the Charter’s secular humanist worldview, but they are truly following its original intent rather than making it up as they go.

After the Charter was adopted in 1982, the provincial and federal governments had to immediately review all of their legislation to bring it into conformity with the Charter. Before any judicial decisions were made on the basis of the Charter, a major change in Canadian law began to occur to prepare for its effect.

“A revolution in Canadian society”

When testifying to a parliamentary committee in 1985, federal Justice Minister John Crosbie made it perfectly clear that the adoption of the Charter was no ordinary kind of change — Canada was being fundamentally altered, and Canadians didn’t yet know what was about to hit them:

“The public does not realize that we already have had a revolution in Canadian society. The adoption of a charter was a revolution. It has changed the whole power structure of Canadian society.”

As the head of the Department of Justice, Crosbie knew better than anyone the wholesale legal change that was about to engulf Canada. This was before any court decisions had been made, so it is clear that the judges are not to blame. They are only implementing the agenda given to them by the Charter itself.

Fundamental change was always the point

Of course, Crosbie isn’t the only one to realize the revolutionary character of the Charter. Various left-wing activists and academics celebrate the Charter’s overturning of the Old Canada. University of Toronto law professor Lorraine Weinrib is one such academic. In her 2003 article entitled “The Canadian Charter’s Transformative Aspirations,” she summarizes the matter this way:

“The Charter’s purpose and desired effect, from the point of view of those who supported it was to transform the Canadian constitutional order in fundamental ways, not to codify existing constitutional values and institutional roles.”

The Charter was not adopted to protect the rights and freedoms that Canadians enjoyed up to 1982, but rather to make Canada into a different kind of country — “transform the Canadian constitutional order in fundamental ways” — as she puts it.

Weinrib describes the Charter as being part of a “remedial agenda.” That agenda includes the expectation that:

“…through extensive institutional transformation the Charter would impose a new normative framework upon legislators, the executive and the administration, as well as the judiciary.”

That may look like a bunch of egghead gibberish, but the main point is the imposition of “a new normative framework.” The “norms” of Canadian society would henceforth be different from before.

New is not always improved

In this view, Canada was an awful place before 1982. Weinrib says that “the Charter took Canada away from a repudiated history that had failed to respect liberty, equality and fairness.” But now people like Weinrib are freely remaking Canada into a wonderful new country, using the Charter to uproot the oppressive, crypto-fascist state that existed before 1982. That’s how they see it, anyway.

The truth is, however, that before 1982 Canada was one of the freest and fairest countries in the history of the world. Few other nations had records that could rightly be compared to Canada’s humane achievements. Millions of people came here to escape the problems of their homelands.

But in order to complete the Charter’s revolution, Canadian history must be rewritten into a narrative of oppression. This will help shore up support for the Charter while its “remedial agenda” is enacted throughout society.

So if you’re wondering why religious freedom and freedom of expression for Christians seem to be shrinking in Canada, consider how the country has changed since 1982. If you think your Charter rights are being denied, think again. The Charter is accomplishing just what it was set out to do — make Canada into a different kind of country. And it’s not a coincidence that Christianity is being left behind. The adoption of the Charter in 1982 represented a deep philosophical change in the nature of our country.

Originally published in the January 2011 issue under the title “Charting a path to tyranny? Canada’s Charter of Rights and Freedoms was always meant to be revolutionary.”


Up Next


Pro-life - Abortion

The Supreme Court did not find a right to abortion

Is the “right” to abortion found anywhere in Canada’s Charter of Rights? To hear Prime Minister Justin Trudeau talk of it, you would think so. He regularly refers to abortion as a “right,” as do other abortion activists. In doing so, they are attempting to equate abortion with other Charter rights, such as freedom of expression and the liberty of the person. Many equate the supposed “right to abortion” with section 7 of the Canadian Charter of Rights and Freedoms, which recognizes: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. They then cite the Supreme Court decision in R v. Morgentaler (1988) as the source of this “right” – this is the decision that struck down Canada’s legal restrictions on abortion. But a careful reading of Morgentaler does not support the conclusion that Canadian law includes a right to abortion. That’s an important point for Christians to understand and be able to explain to others. While there are no legal restrictions on abortion in Canada, there are no constitutional or judicial reasons that there couldn’t be. To equip us to make that point, we’re going to take a close look at the Morgentaler decision and then at Section 7 of the Charter of Rights. The scope of the 1988 Morgentaler decision When looking at the Supreme Court’s dealing with section 7 in the 1988 Morgentaler decision, we need to make two notes. First, while five of the justices struck down the 1969 abortion law being challenged, they did so for three separate reasons. This means that while they agreed that the previous abortion law was unconstitutional, their reasons varied. Drawing conclusions from the decision must then be done with qualifications and by drawing from the various reasons. Second, the legal question of the rights of a pre-born child was deliberately sidelined by the Supreme Court and left to be determined by Parliament. The Supreme Court Justices understood that their role was limited to evaluating Parliament’s specific legislative framework (which then required pregnant women to obtain permission for abortion from “Therapeutic Abortion Committees”), not the general topic of abortion. Chief Justice Dickson, quoting Justice McIntyre, put it this way: “the task of this Court in this is not to solve nor seek to solve what might be called the abortion issue, but simply to measure the content of s. 251 against the Charter.” Section 7 and women in the Morgentaler decision The 1988 Morgentaler decision struck down the previous law on the basis that it interfered with the “life, liberty, or security” of the person in a manner that was not in accordance with the principles of fundamental justice – they said the abortion law of the time violated section 7 of the Charter. The interests considered were not solely those of women choosing to have an abortion, but also the physicians who performed unauthorized abortions and faced imprisonment under the law. In terms of what rights women had to abortion, Chief Justice Dickson (writing with Justice Lamar) didn’t address the issue, focusing instead on the procedural elements of the law and the impact of the Therapeutic Abortion Committees on women’s health. Meanwhile, Justice Beetz (writing with Justice Estey) held that Parliament had carved out an exception to a prohibition on abortion, but had not created anything resembling a right to abortion. He explicitly stated: “given that it appears in a criminal law statute, s.251(4) cannot be said to create a ‘right’ , much less a constitutional right, but it does represent an exception decreed by Parliament.” Justice McIntyre (with Justice La Forest) similarly concluded that, except when a woman’s life is at risk: “no right of abortion can be found in Canadian law, custom or tradition, and that the Charter, including s. 7, creates no further right.” Justice Wilson, writing alone, gave the most expansive definition of women’s interests under section 7, finding that the guarantee of “liberty” included “a degree of personal autonomy over important decisions intimately affecting their private lives.” This idea of autonomy of “choice” for women was not endorsed by the other six justices and was not without limits, even in Justice Wilson’s own estimation. Ultimately, the 1988 Morgentaler decision: did not assume a right to abortion did not create a right to abortion, and cannot be interpreted as implying a right to abortion. Current Supreme Court Justice Sheilah Martin notes that although they struck down the abortion law in 1988: “the Supreme Court did not clearly articulate a woman’s right to obtain an abortion… and left the door open for new criminal abortion legislation when it found that the state has a legitimate interest in protecting the fetus.” All the justices in the 1988 Morgentaler decision agreed that protecting fetal interests was a legitimate and important state interest, and could be done through means other than the law at that time. Even understanding section 7’s “liberty guarantee” as including the freedom to make “fundamental personal choices” does not end the debate, especially when such a choice directly impacts another person’s Charter guarantees. While the courts have failed to extend Charter protection to pre-born children to date, they have consistently affirmed Parliament’s ability to legislate protection of fetal interests. Unlike the Supreme Court, which is limited to hearing individual cases based on a confined set of facts, Parliament is able to hear from a variety of voices and act in a way that considers broader societal interests. The Supreme Court has shown deference to Parliament knowing that Parliament is in a better position to make such determinations. While Parliament has considered various legislative proposals that would create a new abortion law, none of them have passed, leaving Canada with no abortion law. Canada is the sole Western nation without any criminal restrictions of abortion services. Every other democratic country has managed to protect pre-born children to some degree. So Canada stands alone in leaving the question unanswered – not because there is a right to abortion, but because of the inaction of Parliament. As we defend life from its earliest stages, it is important to understand where Canada is as a country and what changes need to be made to our law. While there is much that can be improved in Canadian law, we do not have to fight a pre-established Charter right to abortion. It should be our goal, and the goal of Parliament, to recognize the societal value in protecting vulnerable pre-born children. Tabitha Ewert is Legal Counsel for We Need a Law. For the extended version of this article, along with extensive references, see We Need a Law’s position paper “Under Section 7 Abortion is not a Charter right.” ...


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