Second Opinion: The party of the anti-Charter

In his speech at the Liberal leadership convention last November, Paul Martin noted with pride his party’s historic support for the Charter of Rights and Freedoms, with special reference to the adoption of same-sex marriage.

The denial of basic rights to individuals and to minorities, he observed, affects all Canadians.
Noting the recent cancellation of the Court Challenges Program, he gave this assurance, “We are the party of the Charter and under a Liberal government your rights will never depend upon the state of your pocketbook.”

Stephane Dion, the new Liberal leader, prior to the Commons vote on the same sex marriage issue in December, stated “you don’t pick and choose rights.”

If the Liberal Party is “the party of the Charter,” how would one describe the Conservative Party?
The Conservative government does not attack the instrument directly, through the override clause or constitutional amendment. It purports to advocate the social status quo absent legislative change; it repudiates “judicial activism.”

The government’s approach to the Charter is nonetheless aggressive. It has terminated or eviscerated longstanding programs and policies necessary to effectuate the Charter’s transformative purposes.

The government underplays this agenda through the strict communication codes on “social issues” that applied during the recent election and continue in application to by-elections, members of parliament, and even to cabinet ministers. This cone of silence leaves the government’s actions to speak for themselves.

The cancellation of the Court Challenges Program is a case in point. This long-standing, low cost program supported Charter litigation by funding test case development and public interest interventions. In the future, public funds will support only the Ministry of Justice’s opposition to Charter rights claims.

Status of Women Canada survives, but with much reduced funding. It has lost two crucial mandates: full political participation by women in Canadian society and the realization of equality. The new rules cut off funding for advocacy, lobbying, and general research in favour of “project” funding.

The government thus set aside three decades of support for the full integration of women into all facets of Canadian society. This funding enabled public interest groups to build expertise, organization skills, infrastructure, and a knowledge base that facilitated the Charter’s adoption and ensured inclusion of its strong affirmation of women’s equality.

More recently, this funding ensured that women’s voices were heard in the public debate on the establishment of sharia “courts” for matrimonial dispute resolution under Ontario’s arbitration statute. These voices illuminated the procedural, institutional, and substantive implications of the proposal for those whose lives would be adversely affected.

The Ontario government heard these voices: it did not merely repudiate the proposal; it also formulated structural changes to the resolution of family disputes to protect the interests of women and children.
The federal government has also shut down the Law Commission, which produced historical, comparative, doctrinal, and theoretical research and analysis to respond to societal change and animate constitutional principles.

The government has taken down the web site created by the previous government to mark the 20th anniversary of the coming into force of the Charter’s equality clause. The Department of Justice has refused requests to permit the University of Toronto’s Faculty of Law to make it available to students and the general public.

Connect the dots. The government’s aim is to reduce the number of constitutional challenges, abandon pro-active law reform in areas of Charter-infused public policy, and withdraw resources that build legal and political expertise and knowledge-bases on constitutional issues. It has manifested disdain for expert and multi-faceted deliberation on public policy.

These initiatives will transform our constitutional culture in the short term. For the long term, the government has another initiative in mind: changes to the mode of appointment of judges designed to undermine protection of Charter guarantees.

These many changes were taken with no public debate, no engagement with the constituencies affected, and no intelligible explanations or justifications by the ministers responsible. Widespread objection from leading experts and respected public bodies does not faze this government.

The Conservative Party is fast becoming the “anti-Charter party.” The Liberals invoke their commitment to the Charter with pride and have a long (if imperfect) history of supporting the Charter’s adoption and implementation as supreme law. Prime Minister Stephen Harper, in contrast, would repudiate the Charter’s transformative purposes under the cover of “executive activism”.

Harper’s disdain for the Charter has weakened our electoral and parliamentary processes. In addition, he has undermined the institutional strengths and established roles of our public institutions.

As long as constitutional questions remain the mainstay of national party politics, our political system will fail to reflect the public interest and to attend to the pressing issues of our day.

Lorraine E. Weinrib is a professor at the Faculty of Law, University of Toronto.

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