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The Charter at 25

a_majoor

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Interesting debate

http://www.bloggingtories.ca/btFrameset.php?URL=http://burkeancanuck.blogspot.com/2007/02/charter-at-25-marxist-critique-and.html&title=The%20Charter%20at%20'25'%20--%20a%20Marxist%20critique%20and%20a

Thursday, February 15, 2007
The Charter at '25' -- a Marxist critique and a "Burkean Canuck" response

The twenty-fifth anniversary of the signing the Canadian Charter of Rights and Freedoms is upcoming on April 17th, and we're suddenly rife with pieces about it.

Has the Charter achieved what its framers expected? Has it been a force for good in Canadian society? Has it been a radicalizing or a conserving -- conservative -- influence on how Canadians live their lives? And, has it diminished the democratic character of public discourse and debate in the political realm?

To the first question in a lecture delivered for TV Ontario's "Best Lecturer of 2007" competition, Osgoode Hall's Professor Allan Hutchinson says, "Yes" (it has conserved status quo liberalism). To the second, "No" (it has conserved status quo liberalism). To the third he says it has been a conservative influence (conserving status quo liberalism). To the last question, Hutchinson insists that the Charter has served to "judicialize politics" by moving political hot potatoes away from Parliament and politicians to the Court -- to a Court that, he says, by and large prefers freedom or liberty over equality, singling out Chief Justice Beverley McLaughlin on this last point.

As Professor Hutchinson puts it, there's nothing wrong with the Canadian Charter of Rights and Freedoms except for its form and substance!

Hutchinson makes very clear his major beef with the Charter is that it prefers freedom over equality. For Hutchinson, the Charter preserves a status quo of negative rights preferred by a comfortable middle class to the detriment of extending rights to food and shelter for the homeless, underprivileged, and the poor. Hutchinson wants greater egalitarianism, particularly economic egalitarianism. For Hutchinson, the big problem with the Supreme Court's ruling that struck down the abortion law in 1988 was not that it decriminalized abortion, but that it did not do enough to fund abortions and to make them available. Hutchinson wants to move most Charter questions moved away from the conserving, status quo-inducing influence of the Court -- presumably, back into a political domain accessible by the people. For Hutchinson, "law is politics" -- and a court that favours liberty has the political upper hand in the struggle between liberty and equality. He presses his critique of preferring liberty, noting that liberty does not extend to the domain of someone else's private home. Hutchinson pushes the class struggle analysis noting that the Court has accepted that business corporations should be treated as "persons" under the Charter, but that when labour unions have asked for the same treatment, the Court has demurred. Ergo, the Court is pro-bourgeoisie, er, middle class, and anti-proletariat, um, labour.

For a liberal, "the good" is a free society -- that is, a society of citizens who are individually free. For a Marxist like Hutchinson, "the good" is an egalitarian society -- that is, a society of citizens who are both formally AND substantially free, economically and otherwise.

Is Hutchinson correct? "Sort of."

What is most valuable about Hutchinson's critique is his suggestion that the Court prefers liberty over equality in its rulings. A perennial complaint about the Court's Charter rulings is that they're all over the judicial map -- there's no cohesive way of making sense of them, of drawing philosophical order out of the judicial chaos. But Hutchinson's suggestion raises the possibility of bringing order to the seeming disorder.

If we accept that the Charter has judicialized politics, then we can understand the Court as an arena for debate between exponents of "liberty" and boosters of "equality." That laws should impose only such limits as demonstrably necessary in "a free and democratic society" . . . "free" qua "autonomous," and "democratic" qua "egalitarian." Sometimes the Court favours autonomy or liberty. In other rulings, the Court favours egalitarianism. Perhaps the best place for testing the thesis may be in respect of Charter rulings on the criminal law.

But is justice -- "the good"-- exhausted by either liberty or equality, or, even, by both?

What about institutions? What about marriage and family? What about the church or other faith institutions? What about unions? What about universities? What about fraternal associations?

And . . . What about truth? Does justice have nothing to do with truth?
 
There are parts of the Charter which are neither equal or liberal.

Equality Rights
Equality before and under law and equal protection and benefit of law   

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs    (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

So in Canada it is legal for some people to be "more equal than others" (to borrow a line from Animal Farm) in order to make up for historic and already addressed (in the preceeding subsection of the Charter) wrongs.

Ironic isn't it, that Canada, in seeking to eliminate discrimination and inequality, entrenched them in the very document created to eliminate them.

Stop the planet...
I want off.
 
Equity and Justice demands that individuals be treated unequally.  No two persons are equal in status, influence, power, access to wealth etc.  In order to pursue equity on the whole it is necessary to treat people as individuals, based on their levels of power/influence etc (historically or otherwise). 

If everyone were to be treated truly equally we would be maintaining and purpetuating gross inequalities in humanity.

 
The statute  of Justice is blindfolded precisely in order to prevent her from seeing the differences in the plaintiff and defendant: Justice can only be served if it is applied equally to all.

Since we are imperfect humans, this is the ideal we must strive for rather than a statement of how things are; nevertheless; as soon as inequality is sought or sanctioned by the State, then the end game becomes groups seeking the armed power of the State to sanction their goals at the expense of everyone else.
 
MCG said:

These rights are non-contradictory, which is to say that the institution of them does not interfere with any other persons rights. 

My right to life, that is to say my right to make my way in this world so long as I do not initiate force* through violence, theft or fraud does not stop anyone else from behaving likewise. 

The right to liberty is a derivative of the right to life, for no man who is not free politically, socially and economically can be said to be able to live his life in the manner of his own choosing.  My being free does not deny you the same right.

The right to property enables the right to life, because the products of a mans mind, his labour and his industriousness enable him to have a life worth living.  My working and buying a house does not stop you from working and buying a house as well.

*The prohibition from initiating force is itself drawn from the right of everyone to life, liberty and property.

So having said that, you can see that all the other rights contained in the CCRF are at best derivatives of these, the right of free speech is a derivative of liberty, the right of movement is a derivative of the right to life and protection against unwarranted search and seizure is a derivative of the right to property.

However, lets take a look at section 15 of the charter...

Equality Rights
   
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The first part is not too bad, though the tendency in this whole document to list a bunch of minorities/sub-sets is counter productive.  The first two words spell it out as "Every individual" meaning every person, so why go on to list specific groups?  This only leads to  pressure groups petitioning the government to "include them" later as well, as as if the first two words of the section were not inclusive enough.

Para two is the real kicker though, all that was done for the good in para 1 is undone.  It makes each and every one of us who happen to be in the majority by an accident of birth, retroactively guilty for crimes committed in history.  But even worse than that it subjugates our real rights to the idea that some person born today has a right to be compensated for crimes that happened to their parents or grandparents or great grandparents.  It takes your rights away, point blank.

Now a common argument to this is "Oh but it never happens!"  But it does.

There is a whole thread on this forum about the abuses of the Human rights commissions.  That alone is enough to prove what happens when someone legislates a non-right, (the so called hate speech laws) over a true right  (the right to liberty and it's corollary right to freedom of speech).
 
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