In 1968, then-justice minister Pierre Trudeau introduced his proposal for a Canadian charter of human rights. Such a charter was necessary, he told Canadians, because our individual rights were vulnerable, as they were not explicitly enumerated in the Constitution.It’s true that individual rights were not listed in the Canadian Constitution, but that’s because they didn’t need to be. Canadians were the heirs of the historic rights and liberties inherited from Britain. A listing of such rights would be redundant and even unnecessarily limiting.Ivan Rand, a Supreme Court of Canada justice from 1943 to 1959, was a tremendous advocate of Canadians’ inherited rights. His views are explained by law professor Jonathon W. Penney in a 2010 article for the Manitoba Law Journal entitled “Ivan Rand's Ancient Constitutionalism.”According to Penney, such ancient constitutionalism “understood the common law to recognize and preserve certain liberties and customs enjoyed by Englishmen from time immemorial.” The ancient liberties enjoyed by Englishmen — and Canadians — were affirmed by the common law to be “original liberties” that were protected by political institutions and laws.As Rand himself explained in an important 1953 Supreme Court decision, “Strictly speaking, civil rights arise from positive law; but freedom of speech, religion and the inviolability of the person, are original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order.” Freedom of speech and religion are “original freedoms” absolutely necessary in a free society like Canada.Similarly, in a 1957 Supreme Court decision, Rand wrote that our system of democratic government requires “the free public opinion of an open society,” and furthermore, “public opinion, in order to meet such a responsibility, demands the condition of a virtually unobstructed access to and diffusion of ideas.”.Continuing with the theme of “virtually unobstructed access to and diffusion of ideas,” Rand went on to conclude, “This constitutional fact is the political expression of the primary condition of social life, thought and its communication by language. Liberty in this is little less vital to man’s mind and spirit than breathing is to his physical existence. As such an inherence in the individual it is embodied in his status of citizenship.” In other words, freedom of speech is absolutely vital and a key aspect of citizenship. This was the Canadian way in the mid-twentieth century.Penney goes on to note that “Rand believed his concept of unwritten and implied rights could not be limited by either level of government.”To establish this view, Rand appealed “to an important aspect of the British common law tradition he sincerely believed was received by Canada, if not by the common law, then by the Preamble to the BNA, 1867, which required a constitution ‘similar in principle’ to that of the United Kingdom.”Indeed, Rand “employed ancient constitutionalism to protect and preserve the rights and interests of Canadian citizens in the turbulent post-war era.”This means that before 1982, Canadians were protected by the individual rights inherited from the British common law tradition. But Pierre Trudeau didn’t like the historic British and Canadian system of rights protection. He set out to replace it with an explicit list of rights entrenched in a constitution, with judges being the supreme interpreters of those rights. Ultimately — after years of opposition by people who understood the superiority of Canada’s historic system — Trudeau was successful, and the Charter of Rights became part of the Constitution..So, are Canadians freer now that we have the Charter? Did the Charter increase our liberties? No.Consider what the “progressive” faction of the legal community sees as the outcome of the Charter. For example, Lorraine Weinrib, a University of Toronto law professor, wrote the following on the twentieth anniversary of the Charter: “The Charter’s purpose and desired effect, from the point of view of those who supported it was to transform the Canadian constitutional order in fundamental ways, not to codify existing constitutional values and institutional roles.” That is, the Charter was meant to transform Canada, not to preserve the existing rights and freedoms described and elucidated by people like Ivan Rand.Weinrib goes on to note that the “expectation was that through extensive institutional transformation the Charter would impose a new normative framework upon legislators, the executive and the administration, as well as the judiciary.” The phrase “a new normative framework” means a new philosophical outlook. This outlook — i.e., progressive ideology — was meant to replace the old “normative framework” that had served Canada so well for its first 100 or so years. In other words, out with the old (the ancient constitutionalism) and in with the new (the Charter of Rights).Currently, Supreme Court judges use the phrase “Charter values” to justify the importation of progressive ideology into judicial decisions and constitutional law. So instead of the rights and liberties inherited from the ancient constitutionalism of English common law, Canadians now enjoy only the rights and liberties permitted within the narrow confines of progressive ideology.Do you sense that freedom in Canada is gradually and incrementally shrinking? You’re right. Pierre Trudeau undermined our historic rights and freedoms with his Charter. It’s the poison that’s killing the tree of liberty.
