You profess to be mystified by the Conservative opposition to the Charter of Rights. You profess stupefaction that the Conservatives would ever want to resist the constraints that the Charter puts on government. How could Conservatives possibly want to have less constraint on government actions?
I need to explain something to you. It is not difficult, but it requires an act of imagination. What you have to imagine is that the law courts, the legal training that lawyers receive, the law-school culture, the Charter’s champions, combine to place a specially selected and self-selecting group of people in power to interpret what the law, and especially what the Charter, says.
What they come out with is not obvious by any means. Take the recent Nadon case. To my mind the obvious interpretation of the language of sections 5 and 6 of the Supreme Court Act allowed a Federal Court Judge to be made a Supreme Court Judge. So did Mr. Justice Moldaver of the Supreme Court. The remaining six members of the panel did not, and now we are stuck with the result, being that a Quebec civil law lawyer, once appointed to the Federal Courts, cannot aim for the top court. Did anyone of the majority on the panel think about this highly unfortunate result for the future of the judicial system in Canada?
And that was a relatively simple matter of statutory interpretation. But as everyone who has studied the law knows, there comes a time in the life of a court when no theory of constitutional interpretation will prove a sufficient guide to how one should decide a case. In the end, you have to make it up as you go along. (Noah Feldman’s book Scorpions shows how Franklin Roosevelt’s Supreme Court appointees worked out their issues, and it becomes abundantly clear that the mystery of a supreme court of any country is that the law gets made up as you go along.
I am sorry to have to say this Andrew, because I think you think the law is made by the same process as you were made, by immaculate conception.Unfortunately, or not, the process is wholly biological.
More than messy and human, it is made up by a specialist class of people who have received both legal privileges (to be members of a Bar) and extensive indoctrination into the belief in their might, majesty and importance. Accountants, engineers, doctors and other professionals can become Prime Ministers and Premiers of provinces. The Premier of Quebec is a brain surgeon, for example. But the head of the Supreme Court, and every judge, must be selected from a member of a Bar.
And they have all been imbued with the notion that they alone interpret what the Charter says. Not accountants, scientists, dentists, doctors or acupuncturists. So it is important to raise your sights from the Charter to the power of the class of people who are exclusively authorized to interpret it.
Do you not see a limitation of Parliament’s powers? Do you not then see, in consequence, a limitation of popular government? For good maybe, but not necessarily for the good. The aptitudes, incentives, training and education of lawyers does not automatically lead to wise political decisions, and at the Supreme Court level, they are playing big time politics, albeit in a technical language of rights.
I think you can see that this power to interpret is not accountable to any source of authority other than itself and the specialized class of technicians to who constitute its audience. The Supreme Court in the Nadon decision just nailed the door shut on any amendment to itself, by its own declaration, that any change to its composition is a constitutional matter requiring the assent of seven provinces having 50% of the population to be procured within three years. (The US Constitution allows and indefinite period for garnering the assent of two-thirds of the states. A constitutional amendment that was initiated in the 1830s, I recall, only passed the two thirds mark in the 1980s).
So, Andrew, before you vapour on about those dreadful Conservatives not liking the Charter, perhaps you might like to reflect on the unelected and self-referential nature of our judiciary. For a guy who thinks our Parliament is less legitimate than it should be because we do not have proportional representation, it is not clear why you give a free pass to the nine Volvo-drivers in ermine who govern the country, as a deep state, and are so harsh on the people who have been elected to do so, and who inevitably will be turfed out in the course of time. Only death, reaching 75, or resignation, changes the Supreme Court. Why are you so indulgent towards these technical politicians?