Now that Alberta Premier Kenney has restricted our lives so greatly, it’s a good time to ask ourselves how many trivial violations of liberty can our government heap upon us before they finally force us to admit that we are not truly free?.Brought into force in 1982, section 7 of the Charter reads:.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..This provision is intended to constrain the authority of all Canadian governments. Each of them must respect the liberty of Canadians and not violate that liberty unless that violation complies with the so-called principles of fundamental justice..The Supreme Court of Canada’s first chance to interpret this guarantee came in the 1985 BC Motor Vehiclescase. And that’s when it all started to go wrong. In her reasons, Justice Bertha Wilson said:.Indeed, all regulatory offences impose some restrictions on liberty broadly construed. But I think it would trivialize the Charter to sweep all those offences into s.7 as violations of the right to… liberty…”.In other words, Justice Wilson deliberately redefined the plain, broad meaning of the word “liberty” to prevent seemingly insignificant government impediments to our freedom from counting as violations of the right to liberty because doing so, in her opinion, would trivialize the Charter. .There’s a bitter irony in Justice Wilson’s reasoning. By showing more fidelity to the Charter than to the people it protects, what she has accomplished has been the trivialization of the liberty of Canadians, something far more significant than the Charter. .By 1988, our right to liberty was transformed into a highly subjective catch-phrase “decisions of fundamental importance” meaning, as the majority of the Court agreed in Morgentaler,.“[Liberty], properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal importance.”.So the Charter protects us from violations of our liberty regarding the big, important decisions in our lives – decisions that might come along once in a lifetime – yet does not protect us from the minor, day-to-day violations that occur routinely, over and over. This reasoning is deeply problematic in several respects..First, the dividing line between a “decision of fundamental importance” and one that is less significant is hopelessly subjective. There is no scale, there are no units, by which such things can be fairly measured. No two people would ever rank the vast panoply of lifetime decisions in the same order of importance. Pretending otherwise completely undermines our capacity to make any of our own choices throughout our lives and renders us subservient to the whims of the government of the day..Second, it is simply absurd to think that minor violations of liberty, aggregated together, do not eventually add up to a full-blown case of totalitarianism. Imagine that our government decided that we must all wear a mask, which businesses can remain open, who of us is an essential worker, who we may invite into our homes, how we can express our political dissent, or that we must carry documents detailing our vaccination history. Each of these rules, considered in isolation, might be described as trivial and unworthy of constitutional protection. But could anyone honestly believe we would still live in a free country?.Third, it seems logically backwards to grant each of us great latitude in making decisions of fundamental importance while having restrictive rules for decisions of trivial importance. If you and I are so unintelligent or irresponsible that we cannot handle minor decisions without help from the government, how can we ever be expected to acquire the wisdom and character to handle the big, momentous decisions that occasionally intrude into our lives?.Fourth, who are these policy-makers having the wisdom and intelligence to decide all these petty matters for us, when they are mere citizens as well who likewise cannot be trusted to make little decisions for themselves? How is it that being elected or appointed suddenly elevates these individuals from the status of ignoramuses who cannot be trusted to make everyday decisions about their own lives, into sage policy-makers who can make such decisions not only for themselves but for everyone in the province?.Now, and in the coming months, when Albertans inquire about their constitutional freedom, they’ll realize that it is not hyperbole to say that our liberty has already been eviscerated and emptied out..Derek James-From is a columnist for the Western Standardand a constitutional lawyer
