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20 YEARS OF CHARTER ACTIVISM

The 20th anniversary of the Charter of Rights and Freedoms, introduced on April 17, 1982, was celebrated at a conference held at the Ottawa Congress Centre from April 17 to 20, 2002. The celebration, of course, was undertaken by those who have successfully used the Charter, with the support of the nine appointed judges on the Supreme Court, to push their own special interest agendas.

This conference was in large part, paid for by the taxpayers, via the feminist-dominated federal Department of Justice and Canadian Heritage (the domain of Sheila Copps). The Association of Canadian Studies, the Canadian Bar Association and the John Humphrey Centre, however, also assisted with the conference. The conference planners selectively invited as speakers, with only one or two exceptions, those who have benefited from this top-down rule by the Supreme Court of Canada.

One of the exceptions to this arbitration of the Charter was Edmonton lawyer and constitutional scholar, Dale Gibson, who frankly stated that the key legal decisions of the court were not based on legal doctrine, but on the "values we are not told about," i.e., the judge's own personal views. Another Edmonton lawyer, Rita Khullar, bluntly stated that the Charter was a political document and that lawyers should think real politics. (Is there something about western Canadians which is mightily different from the eastern elites in their thinking?) Certainly the majority of speakers at the conference did not support the comments of these two westerners.

Chief Justice of the Supreme Court, Beverly McLachlin spoke at the opening banquet where she stated, "There are only a few things that are so deeply ingrained in the fabric of our national consciousness: hockey, medicare and the Charter of Rights." Indicative of Charter fever, within 48 hours, Judge McLachlin was misquoted by a speaker at the conference as having said that the Charter is the only thing ingrained in the Canadian consciousness!

Federal Justice Minister Martin Cauchon (Outremont, Quebec) and Minister of Labour, Secretary of State for Multiculturalism and the Status of Women, Claudette Bradshaw (Moncton-Riverview-Dieppe, NB) were enthusiastic keynote speakers. Mr. Cauchon referred to the Charter as the "great societal conversation." Ms. Bradshaw spoke of "equal rights for all people," equality of the sexes and how Canadians value their diversity.

A few said the Charter was undemocratic, but most praised it as representative of Canadian values and aspirations. To some, the Charter was a "project," others referred to "Charter doctrine." Charter enthusiasts bristled at accusations of "judicial activism." Promoters of the Charter depended heavily on historical revisionism to paint pre-Charter Canada as ignorant and hateful. Those with special interests relative to language, ethnicity, immigration, race, gender, the monarchy and crime, all had their say.

Feminists Use Charter as a Tool

Feminist lawyers who were present tended to demonize pre-Charter Canada and glorify post-Charter changes. Some lumped Canada in with third world countries as being in need of "transformation," prior to the Charter. The Canadian Bill of Rights, which included reference to the position of the family in society, was referred to with contempt.

Sondra Gibbons, the LEAF (the legal arm of the feminist movement) spokesperson at the conference, claimed that there have been 140 equality cases since the Charter. To LEAF, the Charter is about "profound social change through legal means." She said that LEAF is "a counterweight to a Parliament that is not representative. …The Charter is a tool we have to use and we have to have the vision to expand the application of it." She added that the entrenchment of Section 15 in the Charter gave women "the broadest guarantees anywhere in the world." She criticized the conference for lack of inclusiveness with regard to what feminists have done since the Charter. LEAF's Gibbons stated, "Women's [feminist's] greatest fear is the loss of the Charter. It would be tantamount to a death sentence." Little wonder, since LEAF, through generous funding of the Secretary of State, Women's Program and the feminist-operated Court Challenges Program, has made enormous changes to the fabric of Canadian society through the courts, which it could never have achieved through Parliament.

Feminist Professor Lorraine Weinrib of the University of Toronto Law School called for a rejection of the past and a welcoming of a "new constitutional order."

We must "clean the statute books of the old order," she stated. She urged Canadians to embrace the "Charter revolution."

In a lively presentation, Justice Rosalie Abella of the Ontario Court of Appeal, (See Reality, May/June 2000, "The Feminist Canaries are Singing Again," p.1) noted that the "rights" business is booming and there is more than enough to go around. She characterized Supreme Court Chief Justices Brian Dickson and Bertha Wilson as the Fred Astaire and Ginger Rogers of the Charter.

Supreme Court Justice Frank Iacobucci, personally involved in drafting the federal Employment Equity Act, Environmental Protection Act and the Multiculturalism Act, spoke of "constitutional supremacy" and mentioned the important role of intervenors as being "absolutely essential in the early years of the Charter." Morris Rosenberg, Deputy Minister, Department of Justice stated that the Constitution is "the supreme law of Canada... what is inconsistent with it is of no force or effect."

Charter "Evolution" is Global

Supreme Court Justice Michel Bastarache said that we are witnessing "a fundamental change in the role of the courts" as a result of the Charter and that "the respective roles of the courts, legislatures and executive powers have been redefined." The Charter has "revolutionized our legal system" and developed a "new culture of rights." He characterized Charter reform as an evolution which is global and initiated by the UN Declaration of Human Rights. The Charter is "the result of an international trend," he stated.

Forgotten at the Celebration

The Charter fallout relative to the rights of the unborn, recent child pornography rulings, controversial hate laws, euthanasia, and attacks on the status of marriage, were lightly glossed over. The many claims that the Charter "protects the rights of the most helpless and vulnerable in our society" sounded hypocritical in light of the shortcomings of Canadian law brought by the court decisions under the Charter. Charter impact on the religious roots of culture and on the family as the basic unit of society, did not emerge as topics that were considered worthy of inclusion at this celebration conference on the 20th anniversary of the Charter of Rights and Freedoms. The choice of speakers and topics indicates that the promising liberal mindset of 20 years ago has changed into a non-liberal defence of the status quo.

Former Newfoundland Premier, Brian Peckford, Exposes the Truth

Twenty years after the Charter was entrenched in the Constitution, former Newfoundland premier, Brian Peckford, one of the negotiators of the Charter, finally has spoken out. In a speech given in Vancouver on May 30, 2002, Mr. Peckford spoke out strongly against the Supreme Court of Canada which, he said, has gone too far in its expansive interpretation of the Charter. He stated (The Lawyers Weekly, June 14, 2002) that the Court's actions go "beyond what I would consider legitimately acceptable." He went on to say that "he didn't think the top court would go as far as it has in many of its judgments. Being the guardian of individual rights and freedoms is one thing, but actually entering the field of law-making or policy-making through the adjudication provisions of the Charter is quite another."

No truer words on the Charter have ever been spoken.

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