RSS FeedAre there inalienable rights in Canada?
We in Canada like to think of ourselves as free. We also like to think we have rights. The police can’t throw us in jail for our political views. And if they do throw us in jail for any reason, the police must let us call a lawyer. A part of Canada’s constitution, the Canadian Charter of Rights and Freedoms guarantees our rights and freedoms. But the constitutional rights and freedoms such as freedom of expression, a right against arbitrary detention or imprisonment, and even our right to life, liberty and security, are not absolute. The Charter leaves loopholes for the federal Parliament, provincial legislatures, or even judges to limit or take away any rights or freedoms. There are no inalienable rights in Canada.
A legal right is a claim to a benefit. The law sets legal rights, and the courts will enforce them if no one else will. When you sign a contract to lease an apartment in exchange for rent, your tenant has a right to use the apartment, and you have a right to some of the tenant’s money. Your right is always someone else’s duty, which is either to give up the benefit you claim or to let you claim the benefit freely. You can also have rights against the government. For example, habeas corpus is a right to see a judge if the police arrest you. Freedoms are like rights but they are more about enjoying benefits you already have, such as speech or movement. Still, the flip side of every freedom is someone’s duty to respect it. For example, if you have a freedom of religion, the government may not ban your faith.
But rights and freedoms in our relations with the government are tricky because the government is a sovereign. It means that within its geographic borders the government writes the law. What good is a right if the government can scrap it? That’s where a constitution comes into play. It’s a superlaw that tells the government what laws it can and cannot write. And it’s very difficult for the government to change the constitution. The Canadian Charter is the part of our constitution that orders the government to respect certain human rights. If a provincial or the federal legislature passes a law infringing on our Charter right, the courts can strike that law from the books. It will have no force and effect. That way the Charter protects us from the government.
Even democracies need this protection to stop majorities from oppressing minorities. For example, our legal tradition has very good reasons for protecting some rights of the criminally accused. Only a minority of the total population will ever need these rights. Whether justified or baseless, a fear of crime can bring a party that wants to do away with these rights to power. In theory, our Charter will always stop the Parliament from touching the rights of the criminally accused. Before the Charter, the Parliament could throw out the presumption of innocence or the law against self-incrimination. A constitution can also protect racial, gender, or other minorities from discrimination. We can be sure of our human rights only when they are safe from the majority and the government it elects.
The Charter promises us this safety, but it doesn’t really deliver. There are several loopholes in the Charter that let the federal parliament, provincial legislatures, or the courts take away rights. First, the notwithstanding clause in s. 33 empowers legislatures to suspend fundamental freedoms (s. 2) and legal (ss. 7-14) and equality (s. 15) rights. Perhaps for fear of the ballot box, legislatures tried it for real only very few times. But if the government can suspend the rights, they are not inalienable.
Second, the most obvious limitation on all rights and freedoms in the Charter is in s. 1. It basically says that sometimes the Charter will not protect our rights. Suppose the Parliament passes a law that bans newspapers in a certain language. If the government can justify this law as reasonable “in a free and democratic society,” it can get away with it under s. 1. Who decides what’s reasonable and what’s free and democratic? Ultimately, it’s the nine people on the Supreme Court of Canada. Sometimes a s. 1 justification is a very hard task, but a right or freedom is guaranteed only if it’s legally certain, not if it’s probable or very likely. So the government can strip anyone of any Charter right with the consent of the Supreme Court.
Third, the courts decide what each right and freedom in Canada actually means. For example, s. 7 allows the government to deprive anyone of “the right to life, liberty, and security of the person” only in accordance with “the principles of fundamental justice.” The Supreme Court decides what these principles are. Next, the Charter often defines rights using the principle of “reasonableness,” which is really a code word for letting the courts fill in the details. See, for example, the right against “unreasonable search” (s. 8), the right to be tried within a “reasonable time” (s. 11(b)), etc. When the police breach our Charter rights to obtain evidence against us in a criminal investigation, we have a right to have it excluded from our trial—but only if “the admission of it in the proceedings would bring the administration of justice into disrepute” (s. 24(2)). Again, the courts decide what that means by applying factors laid down by the Supreme Court.
Finally, if the government breaches your Charter rights, the courts decide what compensation you get if any. It is little comfort to you and little deterrent to the government if the courts merely declare government action unconstitutional. Denied or insufficient remedies gut Charter rights and freedoms. As the recent case of Omar Khadr has shown, the Supreme Court can deny a meaningful remedy even for breaches of the most basic rights such as a right to fundamental justice in s. 7. Most Canadians don’t seem to like Omar Khadr or his family, so the majority is clearly not on his side. The Supreme Court didn’t say that it let the government off the legal hook because of the views of the majority of Canadians. But these views possibly encouraged the government when it violated Khadr’s Charter rights or denied him the requested remedy. What is the value of rights that depend on politics?
One can argue that these cases are extreme and that limits on our Charter rights are fine because we trust our government. After all we elect it. But consider this. First, majorities elect the government, and how certain are you what the majority will be like 20 years from now? Are you going to be in that majority? Do you want to entrust your most basic human rights to a majority? Second, even election rights in the Charter are not inalienable. Mix a national emergency with the right people on the Supreme Court (appointed by the Prime Minister; no Parliament’s consent required), and the words “reasonable,” “free,” and “democratic” in section 1 of the Canadian Charter can have a very different meaning.
The word “inalienable” expresses the idea of rights that the law can never let anyone take. An inalienable right is yours by the fact of your membership in the human species. No government or person gave you this right, so they can never take it away. It is yours by birth. It recognizes your inherent value as a human being regardless of who you are, what you did, or what you think. Very few rights can be inalienable but those that can are truly fundamental: a right to a fair trial, freedom of speech, habeas corpus. The US Declaration of Independence speaks of “Life, Liberty, and the pursuit of Happiness” as inalienable rights. The Universal Declaration of Human Rights recognizes “the inherent dignity and of the equal and inalienable rights of all members of the human family.”
Our Charter does not have the word “inalienable,” neither in letter nor in spirit. It uses other words. But social conditions change, and what’s not “reasonable,” “free,” or “democratic” today can become such in the future. There is a fully legal path to breaches of any rights in Canada. It doesn’t necessarily mean it’s possible politically, socially, or economically, but legally our rights are uncertain. A constitution that fails to protect minorities from the majority’s changing moods does not guarantee rights. The loopholes in the Charter show that we have rights and freedoms only as long as the government and the Supreme Court let us. Rights and freedoms in Canada do not inherently belong to us as human beings but are revocable gifts from the government and the courts. And if we can’t change our Charter, we must at least hold our government to account especially strictly when it comes to human rights.
Access to justice and elected judges (conclusion)
(Part 1)
So anyone demanding the election of judges should understand this: there is a conflict between accountability and impartiality. It’s often hard to get the judges both to be independent and to answer to the people. For example, when the government throws a citizen to the wolves in a foreign country, an independent judge will lawfully award her damages. A judge worried about re-election may cave to his sense of the mood among the majority of taxpayers.
When judges apply straightforward law to straightforward facts, the accountability argument is especially weak. The law is an expression of the majority’s will. When legislatures pass laws, their straightforward applications are obvious. We expect judges to apply such laws almost mechanically. In these cases, judges are pretty much delegates of the legislature. They don’t make any law so they should not be accountable beyond the basic professional standards.
And don’t forget the Constitution—the super law. Its very purpose is to protect some principles against the majority’s will. In Canada, these principles include the makeup of our political system and the fundamental human rights. Judges can strike federal laws when they overstep the constitutional bounds. This is an awesome power of the judiciary. It usually uses it against the majority, so how can anyone expect it to be accountable to the majority at the same time?
When judges apply ambiguous non-constitutional rules, the accountability appears more important. The legislature, either intentionally or accidentally, leaves gaps in the law. It is up to the judiciary to choose one interpretation of the law when some new, unusual dispute finds a hole in the rules. Trial judges have another important power that may need accountability. They are free to decide what facts to take as the truth and what facts to ignore after hearing both parties. Sometimes, juries of ordinary citizens do this job, but in Canada usually judges “find facts”.
But even when accountability is reasonable, it is practically too difficult to have. Judges are different from politicians. Majorities have a right to call the government to account on every political decision. But as we just saw, citizens can claim a right to scrutinize only some judicial rulings. This brings difficulty and uncertainty. Most people do not have legal training. Citizens will have a hard time telling decisions open to their scorn from untouchable rulings. Using more government resources to explain or filter judicial decisions will overburden a system that is already bursting at the seams.
The good news is there are alternatives to the judiciary’s direct accountability through elections. First, we can choose judges very carefully. The Parliament is free to set standards for judicial selection. Second, we can monitor the judiciary for obvious abuse. The police are free to investigate judges suspected of crimes. The Crown is free to charge them if there is enough evidence. Third, we have the appeal route when judges make errors of law. It’s a time-tested but expensive mechanism. Finally, perhaps we should have more juries to make fact-finders more representative of the general population. Unlike the US, Canada has very few jury trials. When a jury makes a verdict, it’s one fewer judge to accuse of being unaccountable to the people.
There are good reasons to demand election of our judges. But the reasons not to are even better. In conclusive cases and in many constitutional disputes the judges should not owe any accountability to the majority. Telling the difference could be too costly for the public, but any mistakes can undermine the administration of justice or the Constitution. Judges protect us not only from illegality but also from ourselves. It’s a huge role. Much accountability is already there through law enforcement and regulation of the bench. If that’s not enough, we could use juries more often. Beyond that, we will have to trust our judges. They have usually been doing a good job anyway.
Federal Election Strategic Voting Tool
With the federal election just two weeks away, many are still scrambling to decide which name they should tick off on the ballot.
A friend of mine turned me on to an interesting Google Maps mashup which allows you to enter your postal code and see an estimation of the latest poll results for your riding.
The tool is designed with strategic voting in mind.
It is a pro-environment leaning website, and the goal of the authors is to see the Liberals, NDP, Bloc, and Greens win the most seats in the house of commons. Therefore, the website makes recommendations about which of these three parties you should strategically vote for in a particular riding to shut the Conservatives out of a seat.
However, even if you are a Conservative voter, you may still be interested to see how your candidate is doing in the latest polls.
I highly recommend checking it out.
The website is Vote For Environment / Voter Pour l’Environnement.
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