Charter + 25 years

It's often been said that judges should apply the law, not make it. PMS certainly thinks so. Yet Canada's Constitution plainly says that any law that conflicts with it is, to the extent of the inconsistency, of no force or effect. Since Parliament passes statutes and the Cabinet issues executive orders, who's to say where and when inconsistencies apply? It has to be an independent judiciary.

It's possible that few understood just how far reaching the Charter of Rights and Freedoms would go, 25 years after its proclamation. Without a doubt, it's affected police arrest and interrogation procedures, thrown a wrench into dealing with illegal immigration, and given people a sense they don't have as many responsibilities as they have rights.

It's also had some unintended consequences, particularly in education. Many out West probably still grate at the fact the French-language minority are actually entitled to run and operate their own schools wherever the parents received their education in the world (correcting an injustice dating back to the 1880s), while in Québec only parents educated in English within Canada have a corresponding right for their children. Meanwhile, some thought the Charter ended the question of confessional schools once and for all (i.e. they were illegal and had to go); in fact the text of the Charter said exactly the opposite and when the Supreme Court ruled they were part of the "Confederation bargain" it forced the issue on the provinces, some of which decided to abolish the religious schools themselves.

There's no doubt in my mind that the Charter has done more good than harm. Parliaments can sometimes go astray and that's what the courts are for, to ensure balance and equity. The fact only about a third of Charter challenges are actually successful in the end also tells me that courts do defer to Parliament and a nullification of a law only happens as a last resort -- after all, there is that clause that says rights may be restricted if justified in a free and democratic society.

So today, I'm going to celebrate -- not with somthing mind-altering but with a sense of satisfaction that this is something that three mainline parties all found common ground on; that they themselves had to limit their power to avoid abuses. Unfortunately, they go on -- such as the persecution of Aboriginals, and secret trials. But I can't imagine where we would be without it. Probably after 9/11, under a state of indefinite martial law.

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