From Democracy to Dictatorship: A Conversation With Douglas Alderson, Part 1
The Canadian Charter of Rights and Freedoms is a mystery to most Canadians. Despite being the supreme law of the land for over 40 years, most do not know its origins, content or implications. The repatriation of Canada’s constitution from the United Kingdom was a national turning point akin to Confederation in 1867 and the world wars. Even though the charter is “Canadian,” it remains foreign. Most know American law and government better than their own.
This ignorance has cost the country dearly. We are now living with the consequences of the charter: Progressive values are replacing Judeo-Christian ones; Parliament has been sidelined by the Prime Minister’s Office, Privy Council Office and Supreme Court; crime is rampant; the nuclear family is disappearing. Canada is unrecognizable to older generations. It is a nation in crisis.
Understanding the charter is critical to understanding the crisis around you.
From Democracy to Judicial Dictatorship in Canada: The Untold Story of the Charter of Rights unravels the mystery. It was cowritten by lawyer and author Douglas Alderson.
Alderson is a graduate of the University of Toronto, Osgoode Hall Law School and Yale Law School, with degrees in law, philosophy, international relations, medical ethics and Canadian and American government. He has practiced as an estate lawyer, clerked for two Supreme Court justices, and been an advisor to a number of government committees.
The following is a conversation I had about his book, the charter and the trajectory of Canada.
The excerpt below has been edited for length and clarity.
You and your colleagues, Gwen Landolt and Patrick Redmond, wrote a book on the charter and Canadian law. What inspired you and your colleagues to write this book?
One of the good things about getting old is that it gives you perspective because you know your experience obviously. You become increasingly aware that the younger generation knows nothing of their history, knows nothing of how we got here, knows nothing about the charter, knows nothing about the role of the courts in particular, or what they do know is very superficial and either taken for granted or not thought about.
It is disputes over controversial issues, such as abortion or prostitution, that of course get the attention of the press and the Supreme Court of Canada. That’s where it becomes very interesting in terms of the larger questions surrounding democracy. How do we govern ourselves? What’s the role of the courts in a constitutional monarchy? Are judges fulfilling the proper role in a constitutional monarchy that still is premised on parliamentary supremacy?
The reason I say that is because in the Westminster model of Parliament, of which Canada is an example, Parliament is supreme. Parliament means the House of Commons, the House of Lords (Senate) and the king in council. That’s the governing body that creates the law of the land.
The charter, however, introduced an idea that somehow government should be limited in what it can do to people, and that’s what the Charter of Rights is all about. The Charter of Rights makes explicit that certain rights are essential and fundamental in a free and democratic society and that government cannot violate these rights except in very narrow and exceptional circumstances.
That idea of a charter limiting government goes back to the Magna Carta. Of course, in our tradition, the Magna Carta is the founding constitutional document that was the first charter—the “Great Charter,” which is what Magna Carta means in Latin. The Great Charter was to curb the power of the king. And from that document, through hundreds of years, has evolved the idea that government power needs to be curtailed, that it needs to be held accountable, and there needs to be safeguards. That’s so government doesn’t become government above the law—a government of tyranny—but rather government under the law.
Coming back to our charter and the Canadian experience, we tend to look at the American Bill of Rights, which I think a lot of Canadians have always been familiar with. When you look at what happens in America, the Bill of Rights is often center stage, whether it’s the First Amendment guaranteeing freedom of speech or freedom of religion, or the Second Amendment, which is the right to bear arms. It is recognized that the rights contained in the Bill of Rights are very much a product of not just the Enlightenment, but the British heritage, the British tradition that citizens have rights apart from government.
This last point is equally true for Canadians: Government doesn’t give you the right to free speech, government doesn’t give you the right of self-defense, government doesn’t give you the right of peaceful assembly or freedom of religion. People have these rights because they’re human beings. We are endowed, as the United States’ Declaration of Independence so eloquently puts it, not by government, but by our “Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” That is why we justly require that government respect these fundamental rights because at the end of the day government exists to secure these rights based upon the consent of the governed.
Even without a written Charter of Rights, there are things in law called precedent, constitutional norms and conventions that are just as binding as any written document. Because let’s face it, at the end of the day, a Charter of Rights is just a piece of paper. How that piece of paper is respected depends upon the the courts, the legislatures, the bureaucracies and the citizenry, as well as the political and social culture we live in. It depends on how we respond to and how we expect our rights to be respected by government. To me and my colleagues, there seems to be a certain lack of awareness of that, so we wrote the book.
We wrote the book not just as a warning about where we’re headed and where we’ve come from, but more importantly as an educational piece so people can understand what is this Charter of Rights and how it came to be.
Canadian constitutional history has always been more attuned to evolution than revolution. The Americans had 1776. Ironically, the American revolution started with the idea that they thought of themselves as being British. What aggravated them was the fact that the mother Parliament back in Great Britain was denying them their God-given rights as Englishmen. That is in large measure why they fought the Revolutionary War: to reestablish those basic fundamental rights that they thought were being trampled by the British government.
In contrast, Canada had 1867, which wasn’t a revolution, but rather an evolution. The idea driving Confederation, to unite the then three provinces of British North America, was to maintain their British heritage and political institutions. They wanted a constitution similar in form to that of the United Kingdom.
Our founding fathers did not like what they saw south of the border. You’ve got to remember that the Civil War had just been completed in 1865. You had a victorious North, an industrial complex that was very mighty indeed. The Americans were looking to expand out west. There were British settlers in Canada trying to maintain their Britishness—a constitutional monarchy as they had no interest in a republic—their British-Scottish heritage, their way of life in governmental structures without being annexed or invaded by the Americans. A good deal of the impetus of 1867 was to create a country that was not the U.S.
They succeeded in doing that, I think, beyond their wildest dreams, when you see what happened in the succeeding years after 1867 as the country grew out West, and British Columbia, Alberta, Saskatchewan and Manitoba were eventually added to Confederation. The building of the Canadian Pacific Railway, which tied the country together and made the country possible, was quite a feat. Again, remember Canada at that time was not an up-and-coming economic and industrial power like the U.S. Yet despite its shortcomings, despite its difficulties, Canada became a reality. It is a story of evolution, not revolution like the Americans.
There’s a lot of fascinating history there. A lot of its based on the idea that God created mankind with certain rights and they’re inalienable. The government can’t take them away. But when we look at the charter, it seems like it’s a different tactic. In your book you talk a lot about the man who authored the charter and who was the driving force behind it: Pierre Elliott Trudeau. I was wondering if you could talk about Pierre Trudeau’s background and how his philosophy or thinking shaped the creation of the charter as we know it.
When I went to school many, many years ago now in university, one of the best courses I had was taught by a professor named Donald Forbes. He was a wonderful professor and one of the courses he taught was called “Canadian Political Thought.” A lot of people saw the course “Canadian Political Thought” and said, “You’ve got to be joking.” Everyone wanted to read Plato, Aristotle, Locke, Montesquieu and the Federalist Papers. Canadian political thought was a completely foreign world. But Donald Forbes had the ability to make Canadian political thought come alive and introduced students to a huge wealth of our history, from the ideas that animated Lord Durham’s report, to the Confederation Debates (Canada’s answer to the Federalist Papers), to Quebec during the Quiet Revolution, to George Grant’s Lament for A Nation, which is a book every Canadian should read today—it is an incredibly important work. At the end of the day, “Canadian Political Thought” is as rich and varied as you’d find anywhere, and understanding it helps one to understand Canadian history, society and politics.
Pierre Trudeau is without doubt a pivotal figure, for better or for worse. He had a Jesuit education and had an intellect. He was accused of being a philosopher king.
I don’t know if that was either fair to him or fair to philosopher kings, but Trudeau was definitely cut from a different type of cloth. He had a journalism background. He was very active in leftist politics in Quebec, and he made no bones about it in his writings, how he switched to the Liberal Party because he knew that there was no way a socialist was ever going to get elected.
Trudeau ended up in the Liberal Party, and when you’ve got a bright mind and can articulate things well, it’s not difficult to stand out in the crowd. People have a hard time understanding what Trudeaumania was about because all of a sudden in the mid-’60s, here you had this fairly good-looking, articulate Quebec politician who was justice minister, single and an apparent jet-setter. Trudeau was in some respects a Canadian political rock star, no doubt about that.
One of his bête noirs was national unity. That was one of the major themes of Trudeau’s premiership: national unity and the desire to fully integrate Quebec into Canadian constitutional society. That was a key driving force in his platform. I don’t know what was in Trudeau’s mind. I’m not a mind reader, but it wasn’t the charter and its rights in and of themselves that were important, but what could be achieved through them. What was more important was their universal application and appeal for all of Canada to try to bring Canadians together.
As such, the charter was only one aspect of Trudeau’s constitutional project. Equally important at the same time was repatriation: bringing the Constitution home, whatever that meant. Until that point, our Constitution, the British North America Act, 1867, was a legislative instrument of the British Imperial Parliament in Westminster. Every time we wanted to make a substantial change to the Constitution, we had to get the change passed by the Imperial Parliament. This was accomplished on a number of occasions without difficulty.
Our book goes into some detail about the patriation aspect story of the Constitution because when the charter was proclaimed in April of 1982, it was proclaimed after having been passed by the Imperial Parliament at Westminster. And here’s the irony: The charter itself was enacted as part of the repatriation project, which is itself a piece of imperial legislation.
There was some discussion in Canada about it, but not a great deal. I don’t think a lot of people understood what was going on, quite frankly. And not just average Canadians, but a lot of people in government, in terms of what they were doing to change the nature of government in Canada forever. The power shift that has occurred as a result of the charter has been profound.
One of the points we are trying to make in our book is that the framers of the charter were either completely naive in terms of how they thought the courts would act once they were given the charter to enforce, or they knew exactly what they were doing. And they wanted to push the country in a more progressive leftist orientation. Once you have a bench of activist judges, it becomes very easy to push through policies and make social changes that you could never get through Parliament or never justify in an election if you had to go back to the people and get reelected.
When you look at a number of decisions, as our book covers in depth—clearly hot-button social issues such as abortion, prostitution, effects on the family, gay marriage, these sorts of things—it’s not an accident that it’s been the Supreme Court of Canada and the judges that have led the charge on the progressive agenda. Parliament has just sat back and said, “Oh okay,” without recognizing that Section 33 of the charter, the Notwithstanding Clause, exists for a reason. It was there because some of the premiers were aware that we were heading into an American style of government where the Supreme Court in the U.S. can make a controversial decision and that’s it. There is no recourse to a Section 33. But our Constitution was set up in such a way that if the court made a decision that the legislatures did not really think was in the best interest of Canada or a province, they could override that decision by the use of Section 33.
On these issues, the federal Parliament has shown very little interest in using Section 33. A couple of the provinces have. Most recently, Saskatchewan used it to protect their parental rights legislation (that required school boards to tell parents what their children are being taught in school) from judicial scrutiny. When you think about it, why shouldn’t parents know what their children are being taught in school and have a say in the curriculum? I mean, it is mind-boggling that you’ve got a segment of so-called “professional” educators and leftists that want to prevent parents from having any control over the curriculum or knowing what Johnny or Susie is learning in school, or more importantly being indoctrinated in school. We all know the political games that are being played here. I just wish more people were more astute and would wake up, take the blinders off, and recognize that politics is being played out with children.
As Lenin said long ago: “Give me four years to teach the children, and the seed I have sown will never be uprooted.” That’s why education is so important. What we teach children, and what we don’t teach children, sets the tone for what is going to be possible for the next generation to accomplish or not accomplish.
To learn more about the charter, read “Forty Years of Canada’s Charter of Rights and Freedoms.”