Howard Anglin: What happened to skepticism of the Charter?

It makes sense that Canadians whose political preferences are usually vindicated by the courts would put their trust in the Charter of Rights and Freedoms. It is rather more puzzling to see the same faith recently expressed by Canadians who have been perennial judicial losers. This is a marked change from the first few decades of the Charter, when most conservatives (and some skeptical progressives) were distrustful of the new American-style bill of rights and the novel power it gave to judges.   

Back in the 1990s, Charter skepticism was a core tenet of Canadian conservatism. In 1993, McGill political science professor Christopher Manfredi published Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, which gave voice to this early skepticism. He questioned the institutional capacity of courts to engage in judicial review of policy choices and criticized the Supreme Court of Canada’s choice to abandon the more modest vision of the Charter’s drafters, who expected courts would avoid imposing definitive answers to ongoing and contentious questions of social policy. 

A few years later, University of Calgary political scientists Ian Brodie, Rainer Knopff, and Ted Morton documented how the courts had been a willing conduit for the political agenda of a network of progressive activist groups. This network, which they dubbed the “Court Party,” saw that Charter litigation offered the potential for an end-run around the democratic process and, for the most part, the courts were happy to oblige them. More recently, Morton has argued that a new “Court Party” is pushing the courts to expand the constitutional scope of Aboriginal rights to block economic development, including oil and gas pipelines. 

To hear some conservatives talk about the Charter today, however, you’d think they’d become fully paid-up members of the Court Party. Both Danielle Smith, the front-runner to be the next Premier of Alberta, and CPC leadership candidate Leslyn Lewis have made appeals to “Charter rights” core themes of their campaigns, particularly in the context of resisting COVID restrictions. This is particularly odd given that virtually every Charter challenge to COVID restrictions has been rejected by the courts. Their continuing faith in the Charter and their insistence on what, despite these defeats, they persist in calling their “Charter rights” is almost touching in its credulity. 

Unfortunately for these new Charter devotees, the weight of their faith is more than the Charter’s secular formulae can bear. They may be forgiven for believing that the line of Supreme Court opinions that have upheld a right of bodily autonomy free from governmental interference—which runs from the Morgentaler decision (abortion)^{1“[A]n aspect of the respect for human dignity on which the Charter is founded is the right to make fundamental personal decisions without interference from the state. … In my view, this right, properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal importance.” (R v Morgentaler (1988) (Justice Wilson)).} through Chaoulli (private health care in Quebec)^{2“‘[S]ecurity of the person ‘encompasses a notion of personal autonomy involving, at the very least, control over one’s bodily integrity free from state interference.’” (Chaoulli v Quebec (2005) (Chief Justice McLachlin with Justices Major and Bastarache)).} to Carter (physician-assisted death)^{3“This right to ‘decide one’s own fate’ entitles adults to direct the course of their own medical care … it is this principle that underlies the concept of ‘informed consent’ and is protected by s. 7’s guarantee of liberty and security of the person.” (Carter v Canada (2015) per curiam).}—also protects an individual right against vaccine mandates and other COVID restrictions. It is at least a plausible interpretation of text and precedent. But abstract appeals to the Charter’s text and Supreme Court precedent are misplaced when the meaning of both depends on the whim and the will of courts.

The Charter’s guarantees of a right to “life, liberty, and security of the person” and the language of “reasonable limits” on those rights are grandiloquent equivocations. They were carefully drafted to appeal to opposing factions with mutually contradictory understandings of what the text might mean in any specific case. 

The Charter leaves these hard practical choices to the courts, which means that someone is bound to be disappointed. More often than not, it will be those on the wrong side of elite political preferences. After forty years of Charter litigation, Smith, Lewis, and others should know this. So why have they abandoned the traditional conservative skepticism about placing policy decisions in the hands of the elite of the legal profession?

It could be that two generations of Charter-centric political discourse has crowded out any memory of the old constitutional order among younger conservatives. It may be almost impossible for anyone whose political consciousness was formed after 1982 to imagine an alternative to liberal constitutionalism, in which rights are conceived of as individually-held claims against the government that are properly enforced by judges by striking down democratically-enacted laws. 

Perhaps, as the Charter has assumed talismanic status in Canadian society, conservatives also succumbed to its symbolic power. For many Canadians, the Charter has become more than a legal document. It is now a quasi-sacred text, which few people have actually read, but to which they appeal, like pagans incanting spells to a sacred rock or tree, when they believe politics has failed them. This belief may be so powerful that even repeated real-life disappointment can’t break the spell for younger conservatives.

Or possibly they have decided that it is futile to maintain intellectual opposition to a constitutional system that isn’t about to change. The battle for the nature of Charter adjudication was lost by 1986, so why keep fighting? But the problem with conservatives embracing a liberal conception of Charter rights and legitimizing a strategy of Charter litigation is they are buying into a game that is rigged against them. When conservatives opposed oversight of parliamentary democracy by a judicial oligarchy, they could at least comfort themselves in defeat with the knowledge that they were right in principle. Now they have no principles and no comfort.