Keith,
The point I would make is that it is good to have a document such as the
Canadian Charter of Rights and Freedoms in place even if a society is changing
rapidly. I found our charter very useful when I worked on Aboriginal land
claims and self-government a couple of decades ago. Had the Charter not
existed, the case that had to be made would have been much less certain.
One thing that bothered me when the 30th anniversary of the Charter was being
celebrated recently was the attitude of our present federal government. The
Prime Minister, Stephen Harper, said something like, well, yes, there is a
Charter, but so what, we've moved on since then. It seemed not only like a
refusal to recognize the Charter's fundamental place and significance, but a
desire to suppress its role and place in the affairs of our nation. Other
steps the Harper government has taken also suggest a shift away from values
that have underlain our nation during recent decades. Examples are imposing
limits on the process of assessing the impacts of large industrial projects,
cutting back on the range of data that Statistics Canada can collect, and the
muzzling of scientists who work for agencies such as Environment Canada. It
seems as though we are being moved from an economically diversified and liberal
modern nation to something being driven from the top to satisfy the purposes of
certain interests and regions. Alberta oil and Saskatchewan potash are rising
while what goes on in the rest of Canada is no longer of much significance.
Personally, I'm not happy with it.
Ed
----- Original Message -----
From: Keith Hudson
To: RE-DESIGNING WORK, INCOME DISTRIBUTION, EDUCATION ; Ed Weick
Sent: Wednesday, April 25, 2012 4:20 AM
Subject: Re: [Futurework] Charter of Rights and Freedoms
Ed,
I much enjoyed reading your piece. Twenty-odd years ago we had a movement
called Charter 88 in the UK which called for a Bill of Rights. We don't have a
written Constitution apart from a few statutory documents scattered throughout
our history, starting with the Magna Charta of 1215 and, since 1959, formal
acceptance of the jurisdiction of the European Court of Human Rights. However,
although the findings of the ECHR have so far been accepted by the British
government, there are many grumbles about it and attempts are made from time to
time to change the underlying written Convention. In other words we have a sort
of Constitution but it has nowhere near the authority as yours or America's
because there are still cultural differences in notions of justice between us
and most of the rest of Europe. The reason for this is that we proceeded to
human rights in a largely peaceful stepwise fashion during the 19th century
whereas almost every country of Europe had experienced violent changes starting
with the French Revolution of 1789 and largely culminating in major revolutions
almost everywhere in the notorious years around 1848. The results of most of
these included written detailed statements of newly gained human rights in much
more detail than the UK has ever done.
The European Court of Human Rights is free-standing and is not directly
linked to the European Union. However, if ever the EU breaks up (which I think
is highly likely once its smaller offspring, the Eurozone, does) then I would
guess that the UK (and some other European countries) would restore UK case law
superiority over the decisions of the ECHR (although mainly based on the
written law of the European Convention some case law is added from time to time
by its topmost judicial layer, the Grand Chamber). I think there'll also be a
renewed campaign for a written Constitution of our own.
I've always been in favour of a written Constitution but in the last few
years I've been less enthusiastic. Modern life is changing very fast.
Constitutions (necessarily) are slow to adapt to new circumstances and
dilemmas. Case law (otherwise known as equity law or common law) is quicker to
adapt even though, in any particularly novel circumstance, case law decisions
may wobble this way and that before settling down into a consensus which is
then followed. Case law can encompass shades of decisions which are more subtle
(and fairer) than written law.
Keith
At 22:56 24/04/2012, you wrote:
Along with the repatriation of the Canadian Constitution, the Charter of
Rights and Freedoms got a lot of attention a few days ago because it all
happened thirty years ago. I was looking through some ancient stuff I'd
written years ago and found the following. You may or may not find it
interesting.
Ed
July 1, 2003,
Canada Day! It was once "Dominion Day", which I still prefer, perhaps for
no better reason than I grew up with it. Yet "Canada Day" may really be better.
"Dominion" suggests that someone is lording it over us, and that is no longer
true.
It was still true when I was a kid in the 1930s and 1940s. Perhaps no one
was lording it over us in terms of telling us what we, as a nation, could and
couldn't do, but the mindset was there. We sang "God Save the King" before
school or movies started, our teachers made us sing about the glories of the
British navy, and we studied British history on the assumption that Canada had
no history without Britain. It all made those of us whose parents didn't come
from the British Isles feel a little second class.
So much has changed over the past fifty years. Canadians now willingly and
openly recognize their diversity. Whether one's forebears came from Britain,
Central Europe, the Caribbean, Africa, or Asia doesn't matter. What matters is
citizenship. If you have that, you are guaranteed equality of treatment under
the law, and you are guaranteed equality of access to services available to all
citizens. And your children no longer have to sing about the British navy
keeping the foes at bay unless they want to.
I like to think that the biggest step in recognizing and defining what it
means to be Canadian was the passage of the Canadian Charter of Rights and
Freedoms, Part 1 of the Constitution Act, 1982. Included among our rights and
freedoms as citizens are: freedom of expression; the right to a democratic
government; the right to live and to seek employment anywhere in Canada; legal
rights of persons accused of crimes; Aboriginal peoples' rights; the right to
equality, including the equality of men and women; the right to use either of
Canada's official languages; the right of French and English linguistic
minorities to an education in their language; and the protection of Canada's
multicultural heritage. If you have ever traveled in countries whose citizens
do not have such rights and freedoms, you'll recognize their importance.
But many countries have rights and freedoms on paper without a good system
of courts to back them up. Here Canada has been fortunate. Its courts, based on
the British system, have always been good. Nevertheless, the existence of
Constitutionally entrenched rights and freedoms, and the need to interpret what
they mean in particular circumstances, has greatly raised our court system's
profile. That the legal system is now in a position of some parity with the
political system has caused politicians more than a little discomfort. They
feel and often publicly argue that power has shifted away from them, thus
impairing their ability to do what they have been elected to do in a democratic
society. I don't agree. Politicians have done some rather awful things in the
past, and there's no guarantee that they wouldn't do them again in future. In
my opinion, any increase in the ability to challenge arbitrary power is a good
thing, and that is what the Charter of Rights and Freedoms enables us to do.
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Keith Hudson, Saltford, England http://allisstatus.wordpress.com
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