In this excerpt of the latest episode of Frum Dialogues, David Frum explains why as a young man he was skeptical that Canada needed a Charter of Rights and Freedoms. Also, now that it has been enacted for 40 years, Frum outlines the effects the Charter has had on Canada, both the visible (the elevated importance of the Supreme Court as an institution) and less visible (the increased practice of elite politics).
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SEAN SPEER: We’re having a kind of real-life moment of historical commemoration over the coming days, with the 40th anniversary of the Canadian Charter of Rights and Freedoms. In a previous episode, David, you alluded to the idea that there’s something of an incompatibility between the Charter and Canada’s parliamentary system. I thought I’d just ask you to elaborate on on your point.
DAVID FRUM: Well, I was very skeptical of the Charter when it was proposed. I was a very young person, of course, but I really doubted that it would be a good fit. At this point, I mean, it’s just such a fact and it’s so engraved in the hearts of Canadians, it’s just part of the way things are.
So we’re talking less about arguments against than prices of. And I would say there have been two, and one that is very visible to everybody and one that may be less visible to everybody.
The visible-to-everybody price is the architecture of a parliamentary system does not really allow for judicial review. In the American system, judicial review was, if not hardwired from the very beginning, it was certainly implicit in the system. Two equal branches between the legislature and the executive, somebody had to adjudicate them. And there had to be ways of adjudicating between the centre and the states as well, so the Supreme Court was created and was given a balanced appointment mechanism.
The president doesn’t just choose Supreme Court justices, the president nominates and the Senate hears and confirms. So there’s some check-and-balance at the Court. And although the Court has become in recent years a more ideological and even partisan institution, there are safeguards against that, even if they’re not working all that well.
Canada doesn’t have that. The justices are chosen by the prime minister at the prime minister’s sole discretion. Prime ministers consult, but they don’t have to, and it’s not clear that they really do. And parliament has no role and the provinces have no role in the selection of people who are going to ultimately determine the balance between the centre and the provinces.
So this thing is grafted, it’s just sort of shoved in, wedged into a place where it doesn’t fit with the architecture. And as a result, the Court is outside the realm of checks and balances, is appointed by the prime minister at the prime minister’s discretion and it supervises everybody else and yet no one else has any say against it. It is not clear there’s any way to correct an errant Supreme Court decision, except through an amendment process of amending the Canadian Constitution, which is functionally impossible.
It’s an amazing thing that the appointment of judges has not become more contested, more ideologized, and more partisanized to date. But the moment the Court does something that a significant part of the country doesn’t like, that fate is waiting. So that’s the thing that is visible to everybody.
The thing that is less visible is this. The existence of the Charter and of the Charter process has relocated the way Canadians think about how to achieve things that they really, really care about. If there’s something you really care about, once upon a time, you’d have to join with like-minded citizens and work together in some kind of collaborative political electoral process, to win votes to carry the day. But that’s not how important things are done anymore. You can work in tiny groups, do elite politics with elite approval, not worry about winning elections, and then through this process that is incomprehensible to most of the citizens of the country, and very hard to understand, even for those who have some legal training, you can achieve your desired goal.
What makes a legal argument sound or unsound? That’s a hard thing to know. You create a whole new system of political participation that is much less collaborative, much less representative. And I think that’s one of the reasons why, when you talk about these upsurges of populism that Canada’s had, one of the reasons is that it’s just harder for people to have an impact on the questions they really care about today than it once was, because the location for those decisions has been moved to a place that’s much less accessible to the political work of everyday people.
SEAN SPEER: David, you mentioned earlier how socialized the Charter has become over the past 40 years as part of our political culture even among conservatives. That is to say the intellectual and political energy invested in the anti-Charter movement of the 1980s and 1990s seems to have fully dissipated. That doesn’t strike me as an inevitable development. What do you think changed?
DAVID FRUM: Just time and habituation and the passage of generations. Things that have always been there seem like they have to be there. And I don’t want to relitigate that, I don’t think it’s useful.
I think the useful question is to say, given the hazards that I’ve pointed out, what is the way to correct them? Given the Charter is now part of the Canadian political system, how do you make it work better? So some obvious measures. One is that you have to limit the prime minister’s discretion over the judicial process. I mean, there has to be some way to make sure that there’s broader agreement on who the justices of the Supreme Court should be. And again, there’s a lot of ideas about how that would work. And the provinces have to have a voice. The justices are, a lot of their time, adjudicating between the centre and the provinces. I mean, it’s just dangerous that the centre chooses the justices who will adjudicate between the centre and the provinces.
You also have to have now much broader, in schools, legal education so that citizens can understand if they want to have a voice in the kinds of things the Court hears. It’s not just done by these mystic hierarchs, who speak this language that is inaccessible to everybody else. You have to find ways to bring people in. So you have to make the system work better than it has done. It’s amazing that it has worked as well as it has. And what I would say is not how do you resuscitate the old debate about whether the Charter should be there in the first place, that’s gone. You need a new debate about how do you mitigate and avert the dangers, that are visible in having the Charter inserted into a parliamentary system and that are going to happen sooner or later.
SEAN SPEER: I’d observe that there’s an ongoing debate among conservatives about whether to seize on these expansive interpretations of Charter rights for conservative ends. The ongoing Cambie case, for instance, aims to argue that s.7’s guarantee of life, liberty, and security of the person should extend to the provision of private health care. Do you have any thoughts about that debate? Are there risks for conservatives that validating judicial activism comes to justify even more expansive readings of the Charter?
DAVID FRUM: I think it’s the opposite. The courts do follow the election returns. I don’t think you’re ever going to persuade a Supreme Court to take an “out there” stance on something that they know very large majorities of Canadians oppose. That’s one of the pretenses, we’ve got the idea that the Court is searching the heavens for legal truth, when in fact it’s got its own ideas, but it’s also heavily influenced by what it thinks it can get away with. And it knows it can’t get away with that. And so the result of any success on say private health care is not going to be to validate judicial activism, it’s just going to be to bump into the legal limits.
If the argument for private health care is persuasive, then persuade people. I think, actually, large parts of that argument are persuasive and Canadians are ready to hear it. And so you’re just putting energy into a place where first, I doubt it’s going to be successful because the Court is going to know what the limits of the possible are. And second, even if the advocates for this were to somehow gain traction in any but the most modest way, they would summon to being exactly the kind of counter-movement to limit the Court that I was talking about a few minutes ago. So I would say, politics is your friend, whether you know it or not, even when you’re in the minority because the act of mobilizing for political action teaches you first what you can do. It teaches you how to do it. And it takes away the hope that there’s some shortcut, away from the gaining of effective substantial consent in your society and trying to govern your society without consent. That’s never a good idea.
SEAN SPEER: Well said David. Just a final question. As the Charter celebrates its 40th anniversary, what do you think its biggest, or perhaps most surprising legacy has been?
DAVID FRUM: I think its biggest legacy, but least surprising, has been it has contributed to the disenchantment with politicians and politics. You know, anyone who’s been there, it’s not always an attractive business. There are lots of people in politics for the wrong reasons and you have to get them, nonetheless, to do the right things. So the Charter process offers the hope that you can take the politics out of politics, you can achieve what you want, but by dealing only with people who share your sensibilities. And so I think it’s contributed a lot to the marked increase in cynicism and disinclination to participate in politics that you’ve seen in Canada since the 1980s.
I think its most surprising effects have been that the judges have actually been quite sensitive to the limits of the possible, even when they’ve taken what seemed in advance like bold moves in areas of sexuality and abortion rights, that the society did not react against them. The judges guessed right about what the limits of the possible were for that, but there’s no guarantee that they will always guess right. Someday they may guess wrong.