I’ve been reading Ezra Levant. It’s not my fault, I was rather forcefully told his “ShakeDown” was a must read. I suppose it’s necessary to break one’s bias every once in a while and it turns out it wasn’t completely wasted effort. I won’t claim to have finished the thin, pocket-sized criticism of Human Rights/Commissions in Canada. With a mountain of reading for school always on the horizon, it’s tough to find the time and willpower to read anything else let alone synthesizing the meaning.
Up to my current place in the book, I’ve seen two real issues with Levant’s reasoning:
1. Interpretation of the charter regarding freedoms (particularly of expression, liberty, thought and opinion); and
2. The policy and pragmatic reasons underlying the so-called “fascist” interpretations of the Human Rights Act and it’s impact on the above named constitutionalized rights and freedoms.
I’ll deal with these two issues in separate posts to keep things to a readable length. This post will deal with the Charter and the second will deal with the policy reasons for the charter-prescribed limits on rights and freedoms.
Housekeeping
As a caveat, Levant may very well deal with these issues later in the book, so this is something of a mid-way reflection. From other materials I’ve seen from Levant, it seems fair to say that the above issues are never satisfactorily dispatched. I’ll update when I’ve finished, but fair warning, that may not come until December!
First, it’s important that I deal with a common inductive fallacy that is pervasive in social policy arguments: Hasty Generalizations or, more commonly, Cherry Picking. Essentially this faulty logic occurs when a small sample is taken, without further evidence, to represent the whole. In other words, a small sample of evidence is chosen to represent a certain viewpoint. Levant does a lot of hasty generalizing. In many instances Levant seems to say “look at the bad things that happened to me, look at these examples of really bad things, thus the whole Canadian human rights system must be bad”. Like the broader legal system and every other socio-political institution in existence, human-rights in Canada are subject to the occasional irrationality and individual querks of the people using and administering them. Our criminal courts convict and sentence innocent people, our Doctors over-medicate and incorrectly diagnose, and our teachers behave inappropriately with students. Does this mean that our legal, health and education systems are all facist and corrupt? No. It means that they are run by fallible, subjective human beings. Our legal and political system is especially vulnerable to human fallacy by its tangled and complex nature.
The Canadian Charter of Rights and Freedoms
The absolutist rights and freedom movement from the US has started to leak north of the border. This is inappropriate for a variety of reasons, not least of which are the massive differences between the methods by which rights and freedoms are constitutionally entrenched in our respective countries. In Canada there are two provisions in our Charter of Rights and Freedoms which are particularly relevant to this discussion:
Section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Section 33. (1): Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
Section 1
Section 1 is abundantly clear; the rights and freedoms guaranteed to Canadian citizens in the charter are only guaranteed within reasonable limits. The fact that this limit is set out in the first section is no coincidence; it describes how the rest of the charter is to be interpreted. Levant often seems to conveniently forget this limitation. The requirement that limitations of rights and freedoms be “demonstrably justified” is a more slippery question, however, and probably where Levant would hang a rebuttal. It seems to me that justification must be considered from a reasonable perspective, one which attempts to balance the interests of all citizens and which goes to the second part of this post – policy and common sense. Limitations are, however, ultimately the purview of the judiciary (i.e. judges), who, with by and large, are a pretty intelligent, aware, and reasonable bunch.
The point of section 1 is, in essence, to say that your rights are guaranteed only when and where they don’t impinge on those of “society-at-large”. Though the charter is directed toward public action (state interactions with individuals or groups of individuals), it has often been interpreted in spirit to deal with civil action (individuals interacting with other individuals). Section 1, in a civil context, means that your rights and freedoms are only guaranteed until they impinge on your neighbour’s. As I will argue more extensively in the second part of this post, if you’re part of the majority (in terms of race, religion, strata etc.) your guarantee to rights/freedoms may be interpreted (correctly in my opinion) less strictly than those of a person belonging to a minority. I’ll leave the reasons for this to the discussion on policy.
Section 33(1)
In order to temper what is essentially a law-making power given to judges (the ability to interpret law through the charter), Parliament included the infamous notwithstanding clause at the behest of the provinces. It simply allows Parliament to maintain sovereign right as an elected body to create laws that reflect the will of the country, regardless of their interaction with the charter. In other words, Parliament, if it so desires, can create laws that intrude on charter rights if it expressly declares that it cannot be struck down due to charter interference. This isn’t as relevant to my argument since it can only be invoked by government and no government has yet to do so, presumably because the political cost would be extremely high.
Both of these Charter sections simply demonstrate how Canadian rights and freedoms are subject to significant limitations. Why should our rights and freedoms be limited? Why are certain groups’ rights and freedoms interpreted more liberally than others? The choice to limit rights/freedoms is one not taken lightly. It is, however, a necessary choice if we are to continue to strive for a diverse, democratic and free society where all citizens are afforded equal opportunity.
