Canada should have rejected a national bill of rights, following Australia’s lead

I’m a native born and law school-educated Canadian who, for decades, taught in law schools in Hong Kong, New Zealand, and, since 2005, in Brisbane, Australia, where I have worked at Queensland’s oldest law school. Since my law school days in the early/mid-1980s, I have been a steadfast opponent of Canada’s Charter of Rights. I didn’t like it when it was proposed, back when I started law school in 1982. I didn’t like it when I graduated from law school in 1985. From day one, I figured that more and more social policy-making would be usurped by pseudo-philosopher kings on the Supreme Court. To me, these are decisions that ought to be made by the elected branches, via a process otherwise known as democracy. Note that I use “democracy” in its “letting the numbers count” sense, not some more recent and morally pregnant understanding that drains majoritarianism of any importance. Also note that the decision-making rule on all top courts is a wholly procedural one. Five beats four, regardless of all moral, legal, and political qualities of the two sides’ judgments. The only difference to legislative decision-making is the size of the franchise. At any rate, I am proud of my opposition to the Charter and to the uber-powerful judges it has created. I do have to confess, however, to getting something wrong. From day one, I predicted Canada’s top judges would become unduly powerful and would be tempted to usurp power from the elected branches. But I never thought that things would get as bad on this front as they are now. Think of the Power case and top judges opening up a remedy of damages against governments for statutes they deem unconstitutional. Think of first denying and then subsequently reading in some sort of Section 2 right to strike. Or the Trinity Western law school case, or the assisted suicide case, or the one allowing longtime non-resident citizens to vote, or the Sauve prisoner voting saga, or the mooted rewriting of the notwithstanding clause—the list goes on and on. My view has long been that when you buy a bill of rights, you are simply buying the moral and political druthers of the lawyerly caste, a caste that today is a standard deviation or two to the progressive Left of the median voter. Which may explain why Canada’s Charter (or any other country’s bill of rights) did nothing at all—you can’t point to a single case—to lessen the draconian, thuggish, pandemic lockdown regimes that were (as former U.K. Supreme Court Justice Jonathan Sumption put it) “the worst inroads on our civil liberties in two centuries.” Soon after my arrival in Australia a couple of decades ago, there was a concerted effort by lawyers, legal academics, judges, and self-styled human rights types to try to get a statutory bill of rights enacted. I spent a lot of time debating in person and arguing the “no” side, which prevailed. What was one of my strongest arguments? Pointing to Canada and asking, “Do you want unelected judges making the sort of calls they’re making there?”. I would also point out that, in terms of, say, specifics related to the scope to speak one’s mind, rather than dealing in Olympian abstractions such as “right to free speech,” Australians have more scope than Canadians. Think hate speech law limitations, for instance. Put differently, freedom and civil liberties in Canada did exist before 1982. Meanwhile, the so-called “living tree” interpretive approach really is just a device that eliminates constraints on the judges. The point-of-application interpreters become the Constitution’s re-drafters. They are constrained only by their own sense of what should constrain them. All in all, then, that 1982 Pierre Trudeau innovation of the Charter of Rights really has changed things immensely when comparing Canada’s and Australia’s constitutional arrangements. For democrats like me, Australia got it right.