The Charter Challenge- Pondering what Pierre has wrought
One of the many dubious legacies left to us by the various Liberal governments of Pierre Elliot Trudeau is the Canadian Charter of Rights and Freedoms. We Canadians have heard if mentioned so many times yet few of us have even the foggiest notion of its contents.
Until recently, I included myself in this group. Like many, I had a vague idea that the Charter guaranteeing a fairly major concept – the right to life. Then I received my Charter lesson.
As its title would suggest, this 16-year-old document sets out our rights as Canadians. Among other concepts, in it you’ll find the right to vote (Section 3); the right to freely enter and leave Canada (Section 6); right to education (Section 23); and the right to life (Section 7). Yes, according to a group, that’s in there too. Follow their logic.
Next time you’re at your MP’s office, pick up your copy of the Charter. It’s not long – laid out on a sheet of paper roughly the size of a place mat.
Section 1, 7, and 33 are the important ones:
Section 1: “Guarantees the rights and freedoms set out” in the Charter.
Section 7: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Section 33: “This Charter applies . . . to the Parliament and government in respect of all matters within the authority of Parliament.” This section also contains the bewildering “Notwithstanding” clause which is used to override another Section in the Charter. An Act of Parliament (either Federal or Provincial) is necessary to limit any of the rights contained in Section 7 to 15. Such an Act ceases to have effect after five years but can be subject to re-enactment.
As this stage most people steel themselves for a round of bewildering logic. Their eyes glaze over and their brains cease functioning. But take heart, the argument is short and understandable. Read it and you will want to send it right back: “Too easy- no one will believe it.”
Section 1 guarantees the Rights set out in the Charter. Section 7 is clear enough – everyone has the right to life. (The unborn child must be included in the term “everyone.” Consider that the child is the product of an act of fertilization which, in language, creates an individual. This individual is unique from others by its genetic code – DNA which it receives at fertilization. Royal Succession is valid only so long as fertilized individual (the child) is part of the definition of everyone).
At the present time, the “right to life” as guaranteed by the Canadian Charter of Rights and Freedoms is limited by abortion to only those who are born. According to Section 33, any limitation of a Charter of Right must be done so by an Act of Parliament. Since there is no law in place and relevant case law (Borowski vs. Queen and Diagle vs. Tremblay) is more than fiver years old, current practice of abortion continues in contravention of the Charter.
And that’s basically that. In a nutshell: Section 1: Rights in the Charter are guaranteed; Section 7: Right to Life; and Section 33: Any limitation of this Right can only be done through an Act of Parliament. Since there presently exists no law or relevant case law limiting the right to life – the Charter’s parameters are compromised.
So what’s all this worth? In theory, it’s certainly interesting but it needs to go beyond this. A Charter challenge is out – few would support such a time-consuming, expensive and unreliable project.
Rather, the group’s goal is to approach pro-life groups (especially Campaign Life Coalition) asking them to encourage their supporters to read the Charter and write letters to the Minister of Justice (c/o their MPs).
The feeling is that writing a politician about morality is usually a washout. Perhaps a letter regarding the Charter will catch their interest. They are the ones duly bound to correctly defend our rights and freedoms as set out in the Charter. If they don’t believe you, tell them to look it up.
Pondering the success of this idea, an odd thought occurred to me. Perhaps, if the idea does indeed take root, a day will come when we’ll hear our federal politicians say: “I’m personally all for abortion but there’s the Charter you know. My hands are tied.”
Or, for the more legal-minded MP: “I’d love to support abortion but it’s an abrogation of the notwithstanding clause of Section 33 as it applies to Section 7 of the Charter of Rights and Freedoms.”
Whatever the case, I wonder how either of these scenarios will play out in the mind of Mr. Trudeau, as he passes time in his Montreal law office, reflection of his legacy as Prime Minister.
(Peter Muggeridge is the former managing editor of The Interim).