The Canadian Charter of Rights and Freedoms:
By Peter Veenendaal, May 2002
Most of our parents or grandparents were immigrants from Europe. Imagine that when these people were considering moving to a new country, the immigration promoters told them that in this great new country where you are going:
- child pornography is promoted as acceptable,
- public schools encourage sodomy,
- abortion is the most common surgical procedure in the country and
- divorce is so common that it is met with shrugs.
Do you think they may have had second thoughts about bringing their families to Canada?
When Canada became a country 135 years ago and even as recently as 50 years ago when many of our grandparents and parents immigrated from the Netherlands, such possibilities seemed unthinkable. We had moved to a country when the Lord’s Day was still honoured and where the Ten Commandments were still the basis for the morality of our neighbours. Today media headlines which make pronouncements concerning such matters are an every-day occurrence and hardly raise the eyebrows of ordinary Canadians who are busy planning this summer’s vacation and how to top up that RRSP to prepare for early retirement. As a matter of fact, it has come to the point where such headlines hardly fizz on Reformed people.
How have we come so far so quickly? What has made it possible for Canadians to shift so drastically in their outlook on life for themselves and their children? Surely our Fathers of Confederation had not intended Canadian society to come to the point where it is today! Let us take a brief look at the way in which the Fathers of Confederation built the foundations of our country – our constitution. Perhaps that will show us how things have evolved to the point where we are now.
When those famous Fathers with Sir John A. Macdonald at the helm were preparing for the birth of the Dominion of Canada, they had the advantage of looking at some models of the ways in which the foundations of other countries had been established and how these had worked for them. They had the British model to consider. Now the British model, although called an unwritten constitution, is actually written down. The reason it has this reputation is that it is not written down all in one document. The British constitution consists of statutes dating back to the Magna Carta of 1215. Various principles concerning royal power, independence of judges and others make up the legal framework of the British constitution and a body of case law had developed around these statutes and are considered a part of the constitution as well. You can see that the most important institution of British government rest not on law but on convention or what had been done in the past.
The Fathers of Confederation also considered the American Constitution model which is the world’s oldest surviving written constitution. In a few pages, this constitution lays out the duties of the various levels of government as well as the rights of individuals. The amending process was intentionally made cumbersome so that the constitution would not be lightly changed.
The British constitution on the other hand can be amended by statute and is quite flexible while the American is rigid and difficult to change.
The Canadians opted for a hybrid of the British and American models – adopting both a written and an unwritten part. The unwritten part consisted of a series of statutes enacted over a long period of time by the British courts and parliaments in regard to morality and criminality. The British North America Act, the official written constitution in 1867 clearly showed the division of jurisdictions between the federal and provincial governments. Initially, court decisions in Great Britain were automatically adopted by Canadian courts and governments. Because many of these were based on the beliefs of a traditional Christian population, Canada’s laws reflected such traditions when it came to moral direction and criminal law.
After World War I, Canadians became increasingly dissatisfied with being simply a colony of Great Britain and taking orders from the British Parliament. After all, during this war, Canadians had proven themselves to be a country which could be counted on to be a major player in international affairs. They felt they could now stand on their own feet and craved autonomy for their nation. One of the most outstanding steps toward becoming autonomous came in the form of the The Statute of Westminster. This act, passed by the British Parliament on December 11, 1931, established Canada, Australia, New Zealand, South Africa, Ireland and Newfoundland as independent nations who no longer were subject to legislation passed in Great Britain. Even though this was now the case, Canadian courts and governments still usually adopted British court decisions and our BNA Act was still an act of the British Parliament.
In 1960, then Prime Minister John Diefenbaker’s Conservative government passed the Canadian Bill of Rights. This charter recognized many individual rights, aiming to prevent Canadians being hurt by various types of discrimination based on race, national origin, colour, religion or sex. It began with a very clear affirmation that “the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions.”
This Bill of Rights was criticized by many to not go far enough in protecting the rights of individual Canadians. It was never approved or adopted by individual provinces and was seen by judges often as information which would help them interpret the law. Being simply an Act of Parliament, it could quite easily be thrown out or superseded by a future government.
It was in the late 1960’s that Canadian law would begin to diverge sharply from the parallel path it had followed alongside the British law for a century. The Trudeau liberal government led the way with de-criminalizing abortion and homosexual activity and making divorce much easier to acquire. It seems that at this time a new moral stand was taken by Canadian political leaders and hence by Canadians as a whole. It seems that the new stand was that individuals themselves were not responsible for their crimes and social misbehaviour. They believed that society was at fault for raising flawed individuals. The emphasis in Canadian courts shifted from responsibilities to individual rights. As a result, Canadian morals became more and more liberal.
1982 brought us the Charter of Rights and Freedoms. Prime Minister Trudeau was intent on patriating the constitution of Canada so that it would be an act of the Canadian Parliament rather that of Great Britain and did his best to get the provincial governments on board. If he achieved his goal of patriating the constitution, then amending this constitution could be done right here in Canada. Previously, changes had to be made by the British. When unanimity on the terms of bringing the constitution home eluded him, he received the Supreme Court go-ahead to do it on his own without the consent of all the provinces. The resulting Constitution Act of 1982 patriated the constitution.
This Constitution Act consists of the BNA ACT of 1867 along with various amendments made to it, and the constitution Act of 1982 which includes the Charter of Rights and Freedoms. Despite the opposition of many Canadians, then Prime Minister Pierre Trudeau used the timing of patriating Canada’s constitution as a time in which to enshrine a number of rights and freedoms as a part of this renewed constitution. The rights of Canadians, which had previously been enacted as law in 1960 (PM Diefenbaker’s Bill of Rights), were deemed to be not protected effectively enough because, as a simple act of Parliament, it could be reversed or overturned by any future federal parliament.
The Charter of Rights and Freedoms boasts to have given Canadians many freedoms: freedom of opinion, of expression, of religion, of association and freedom of thought. It gives rights to persons accused of crimes, special rights to aboriginal people, language rights, and equality between men and women. It has been defended as the protector of minorities. And because all other laws must be consistent with the rules set out in the constitution, the Charter is undoubtedly the most influential law we have in Canada. All federal, provincial and local laws dealing with topics such as discrimination, consumer protection, the environment, and victims and persons accused of crimes, etc. may be tested by the content of the Charter. Perhaps, after 20 years, we can look back and by highlighting several examples we can see how Canadians have been served by the Charter.
The country’s abortion law was struck down by the Supreme Court of Canada in 1988. Although it had been severely restricted by law, abortion had already been widely practised across Canada in government-funded hospitals as well as in private clinics. Well-known abortionist Henry Morgentaler, a Holocaust survivor, campaigned and fought hard on the basis of the Charter to give Canadian women the right to abortion on demand and he convinced Canada’s highest court that the existing law was too cumbersome and women were not given equal access to abortion procedures. To date, the law has never been replaced and abortions number over 100,000 annually.
Capital punishment had already been abolished in Canada in 1976, but the Supreme Court strengthened Canada’s resolve to oppose what they called “cruel and unusual punishment” by demanding that criminals deported to other countries will not face the death penalty. They find it too irreversible and its imposition is judged as being arbitrary. Many fear that this ruling may make Canada a haven for criminals who may face the death penalty across the American border.
When the Lord’s Day Act was challenged 23 years ago, the Supreme Court only had the Canadian Bill of Rights (1960) on which to base its ruling. The Bill of Rights didn’t create new rights; it affirmed the rights Canadians already had. Using the Bill of Rights, recognizing that Canada was an overwhelmingly Christian country, and that Sunday closing laws had been accepted for years, judges upheld the Lord’s Day Act which restricted Sunday shopping. Moreover, they stated that the Lord’s Day Act hadn’t forced anybody to practice Christianity or prevent anyone from practising his or her own religion.
Unlike the Bill of Rights, the Canadian Charter of Rights and Freedoms enshrines freedom of conscience and religion regardless of existing federal or provincial laws. So when Calgary’s Big M Drug Mart’s challenge came before the Supreme Court of Canada in 1982, the judges would take a very different approach. They focused on the purpose of the Lord’s Day Act rather than its effects. It concluded that the purpose of the Lord’s Day Act was to protect the sanctity of the Christian Lord’s Day. In so doing, the act compelled all Canadians to observe Christian beliefs. That, in itself, offended freedom of religion and gave the appearance of discrimination against non-Christian Canadians. The Supreme Court ruled that a religious value- keeping of the Christian Sabbath- had been incorporated into a law that affected believers and non-believers alike. On the basis of Christian beliefs, non-Christians were prohibited from carrying out otherwise legal activities on Sundays. This was deemed inconsistent with the preservation and enhancement of Canada’s multicultural heritage recognized in Article 27 of the charter.
The case of an estranged lesbian couple from Ontario resulted in the rewriting of legislation which now ensures same sex couples the same rights over such things as pension benefits. In 1998 the Supreme Court ruled that Alberta was wrong in not including sexual orientation in their list of protection of equality rights.
More recently, the case of child pornographer John Robin Sharpe in which a BC judge ruled that parts of Sharpe’s pornographic writings had artistic merit and were therefore not criminal, enraged many Canadians. This ruling was cited by the Alliance Party’s Justice critic as an example of a judge-made law which turns over parliamentary democracy to judges who now exercise political authority as well as legal authority. Mr. Toews considers the reason why governments are increasingly becoming more reluctant to take bold initiatives on behalf of society is because they are concerned about the reactions of the courts.
Aboriginals have benefited immensely from the protection given them by the Charter. Court interpretations of treaty, land, hunting and fishing rights tie the hands of legislators who sincerely want to improve the horrible living conditions of Canada’s aboriginal people. They seem to have come to the point where the pros and cons of an issue do not seem to matter. It is the “rights” about which they are concerned. Recently, in a conversation with a Native leader, I was told that the Reserves should have the right to build and operate casinos because “you people in the city are allowed to have them.” It did not seem to occur to him that by enslaving themselves to the evils of gambling and all the sinful activity that is associated with it, Native Canadians are in fact sentencing themselves and future generations to a life of misery and poverty both financially and spiritually.
In effect, this Charter has brought us a massive transfer of power from elected Members of Parliament to the unelected judges of Canada’s courts. In 20 short years, the courts ventured into areas of social engineering where no elected politician would dare to tread. More than a century of case law as provided by the British unwritten constitution were turned upside down and the judges’ own individualistic view of the world was put in its place. In those 20 years. Abortion on demand was given as a right, prayer was banned from schools and city council meetings, laws against Sunday shopping were thrown out, homosexual common-law marriages were recognized, homosexuals are allowed to adopt children, the age of consent for sex was lowered to 14 years, and writings dealing child pornography were judged to have artistic merit and therefore allowed for publication and distribution.
How can a nation who has a constitution with a preamble which states that our country is founded upon the principles that recognize the supremacy of God and the rule of law, come to this low point. It is maybe easier to understand when you know that in banning school prayer in Ontario, the Supreme Court of Canada stated that Canada was no longer a Christian nation but a secular one. The judges took it upon themselves to substitute their secular humanistic beliefs for the Christian beliefs on which it was founded.. One judge stated that “Just as children are entitled to attend public school and be free from coercion or pressure to conform to the religious practices of the majority, so everyone is entitled to attend public local council meetings and enjoy the same freedom.” Penetanguishine’s century-old tradition was challenged by Henry Freitag, a local Jewish resident, who claimed he felt “intimidated and uncomfortable with the practice.”
In December, 1998, the B.C. Supreme Court determined that the Surrey school board could not ban homosexual-advocacy books from Kindergarten and Grade One classrooms. In her ruling, Justice Mary Saunders stated: “Freedom of religion includes freedom from religion.”
Where did this “freedom from religion” notion come from? It’s certainly not in the Charter, nor anywhere else in Canadian law. One must surmise that it derives from the American concept of a “wall of separation” between Church and State and a gross misinterpretation of the US Constitution’s First Amendment.
In attempting to provide their warped view of egalitarianism, various types of employment equity and imposition of hiring quotas for visible minorities, the differences in abilities and the differences between males and females are ignored. In the case of homosexuals, there is an unwillingness to recognize that the relationship between a man and a woman is uniquely different from that of two men or two women.
In promoting an extreme form of autonomy for individuals, judges refuse to recognize that individuals are also members of a society and that private activities and decisions have consequences that affect the general public. Consider the others that are affected by illicit drug use, distribution of pornography, and of course abortion in which an unborn child dies every time. Besides the human cost that has to be paid, we should consider how all tax-paying citizens are indirectly involved.
Every time again we can see that we are in a political struggle over morality and worldviews. The Christian worldview versus the secular humanist view. Those who believe in life after death and those who believe there is no such thing. Those who adhere to a moral system that attempts to limit sinful action s and those who have adopted a “pleasure principle.”
Consider the effect this kind of direction has had on our society in general. Canadians no longer seem to know their right hand from their left hand as the people of Nineveh in the time of Jonah.
Consider the following facts: More than twice as many Canadians believe that shoplifting is more immoral than having an abortion! Acceptance of homosexuality and doctor-assisted suicide is on the rise in our country! Infidelity is shunned by 80% of Canadians but only 27.3% believe that premarital sex is taboo. Despite these and other facts gleaned from 1519 Canadians in a Leger poll conducted between January 8-13 of this year, more than 70% of Canadians consider our “moral sense” to be high or very high. To Reformed Christians, there seems to be a real contradiction stated in these results. But is it really a contradiction in the minds of the average Canadian? Or do Canadians not even know the difference anymore between moral and immoral behaviour?
It sounds pretty bleak doesn’t it? And yes, if reversal of this trend depends on us the future is indeed bleak. We are few in number and very limited in resources such as funds and time. Scripture does not allow us to be quitters however, no matter how difficult the task appears. We cannot allow the darkness and gloom of these horrible liberal secular trends overwhelm us. Instead, let it inspire us to become active in, not only pointing out the wrong, but also in promoting what is right. Everyone of us has a task here as Jonah had in Nineveh. And did God not turn the hearts of those people so that they turned from their evil ways?
The 20th birthday party for the adopting of Canada’s Charter of Rights and Freedoms may be over, but the concerns of Reformed Christians remain. We have not seen the end of its impact on Canadian society by allowing many anti-Christian judgements based on the often misguided reasoning that all Canadians have the specific rights and freedoms listed in it. Let us not grow weary of encouraging our elected representatives to fearlessly protect the Christian principles on which our country was founded some135 years ago and take bold initiatives to protect Canadians and their families from a Charter-imposed slavery to unscriptural laws.
In His Sermon on the Mount, Jesus says to us, “You are the salt of the earth . . . You are the light of the world. . .Let your light shine before men, that they may see your good deeds and praise your Father in heaven.” Speak to your neighbours, your co-workers, your mayor, councillor, MLA, or MP and express your concerns with the way things are going. And show them that there is only one King and Ruler of us all who has given us a way out of our state of slavery to liberal sin through His Son, Jesus Christ. For His only is the kingdom and the power and the glory for ever.