Ian Mulgrew: Is the Charter of Rights and Freedoms a Mirage?

Due to COVID pandemic health orders, recent court decisions and political debate, A stark contrast with the image of this country was revealed. "True North Strong and Free" and its constitutional seemingly milky toast protection.

Health professionals and lay workers lose their jobs for refusing vaccinations, religious worshipers are prevented from practicing their faith, and freedom of movement, freedom of speech and privacy are denied. A national emergency was declared restricting rights. Other restrictions were also imposed.

While the courts that upheld such measures have so far shown little enthusiasm for demanding evidence to justify and support their breadth, government ministers Because of this, he quietly claims that he cannot say why such sweeping powers are needed. all things.

In its ruling last month on a constitutional challenge to Medicare, the B.C.

Local laws could trample on a person's right to life and safety. If sexually active, women may be tempted to seriously ask how their abortion rights are protected.

Like the United States, Canada has a constitution that guarantees the fundamental rights and freedoms of the individual, but they are far more limited by collective or "group" rights.

Forget about "indivisibles". The Charter of Rights and Freedoms asserts that rights are subject to reasonable limitations and that the legislation nevertheless takes precedence in their provisions.

In the United States, where its founders fled European persecution, this was the basic principle, but concerns about the need for checks and balances to limit absolute power were completely absent. I'm here.

The American Constitution begins with "We the People...".

However, the Canadian Constitution has virtually no citizenship. It begins with: "While each state wants the Commonwealth to be united into her one dominion..." includes basic democratic rights, rights of movement, and linguistic rights. , valid for 5 years, but can be renewed.

Quebec invoked provisions, for example, to maintain language laws that conflicted with the right to freedom of expression.

and its decisions are ruling and binding on governments south of the border.

Canadians, born without revolution and without much say in the imperfect process that brought about the Constitution and Charter, remain "subjects" of the monarchy.

That is evident in the legal system. In a criminal trial, it's Her Majesty, not the state versus the defendant. There were complaints against the government. Technically, sue the Queen.

While Americans enjoy the right to free speech, and that right allows only rare and practical restrictions, Canadians do not.

Although banning obscene material is a clear violation of representation, the Supreme Court of Canada ruled that the depiction was associated with violence, involved children, degraded or dehumanized. In the case, it supported criminal laws against "unjustified exploitation of sex".

Although no actual harm was done, the potential risk to women, children and society was sufficient for the court to consider it reasonable to curtail the right to free speech.

As one critic lamented, "Murder is a crime. Explaining murder is not. Sex is not a crime. Explaining sex." }

Similarly, hate propaganda laws can be mobilized under the Charter. By comparison, Americans are free to insult and hate each other as long as they do not incite violence. As long as you don't do that, we also allow you to report false statements and rumors.

In Canada, unverified material can trigger defamation lawsuits. Because the protection of reputation is more important than the chilling effect of such laws on public debate and debate.

Religious freedom and other rights are also interpreted differently.

The United States' constitutional separation of church and state prohibits the government from supporting religion.

Canada does not have such a strict category, and indeed some provinces mandate funding for minority Roman Catholic and Protestant school systems. The Queen remains head of the Church of England and appoints senior clergy on the advice of the Prime Minister.

Similarly, the Charter explicitly affirms reverse discrimination.

When Chief Justice of the Supreme Court, Beverly McLachlin explained these differences:

"This lack of revolutionary tradition is perhaps the reason why Canadians This is the main reason why we waited over 100 years for its adoption, and why we are satisfied with the Charter of Rights and Freedoms, which begins with the recognition of rights and rights of nations that limit fundamental rights and freedoms. 90}

"In other words, the United States suddenly emerged from its colonial days bloody and determined to protect its individual citizens from national tyranny. … Canada was colonized. Emerging later, more peacefully, and gradually from Earth's age... Canadians are more willing than Americans to trust their states, and blame them when poverty is rampant or medical needs are unmet.

In short: peace, order and good governance, not the pursuit of happiness and individual liberty.

The "True North" tag is Lord Tennyson's fault. Of course, it's from his most famous poem, "To the Queen."

imulgrew@postmedia.com

twitter.com/ianmulgrew

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