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June 09, 2006


Brad Jersak

My own sense is that a Charter of Rights and Freedoms does indeed reflect the liberal values of 'freedom-as-willing' upon which America was founded, at least in part. My 'rights' can often be asserted as license to get what I want, how I want, when I want in ways that end up tyrannizing others. When MY freedom, rather than love, becomes our highest moral value, we find ourselves rallying to 'pay the ultimate sacrifice for freedom,' which I might argue is not dying, but killing ... whether that be the foreign enemy or the inconvenient baby.

On the other hand, there is something essential in having a charter of rights and freedoms. It is specifically designed to protect minorities from the tyranny of the majority. It names those who are vulnerable to abuse and in fact show a historical track record of being unjustly treated. It protects them from violence and exclusion by the mob such that the courts can say no to the will of the majority where the majority has acted immorally. In other words, a Charter of Rights and Freedoms in Canada is meant to embed recourse into our system that prevents what happened in Nazi Germany.

But there is something else. Inherent in our Charter of Rights is a sense of justice based in what we owe one another by virtue of our humanity, our God-given natures. "What is due" in the Classical sense. Something about acknowledging how we should treat others based in our common humanity--and esp. the weak among us--exceeds liberal selfishness. There is a collective concern for the 'other' in that it was not the weak who established it.

Further, Trudeau's 1982 Charter is sometimes disparaged because of Trudeau himself or those who have no use for the liberal party. But remember that it was built on the foundation of Diefenbaker's 1960 Bill of Rights. Both PMs were concerned to make individual freedom our supreme political value ... and in this sense, there is something very 'liberal' about it. But in acknowledging the call to protect the downtrodden, there is also something very prophetic about it.

My own critique of the Charter would be twofold:

1. In attempting to cover the rights of the weakest among us, the Supreme Court's interpretation of the Charter has excluded the weakest among us: the unborn child. If only they had been included as one of the explicit minorities at risk, how different the Charter would seem. We would of course need to negotiate how their rights balance against those of women, just as we must balance the conflicting rights between some gay communities and some religious communities. And what a powerful, messy, and perhaps beautiful struggle for human rights that would be ... but in the case of our tiniest citizens, we've missed it.

2. In emphasizing the rights of the individual, we leave unstated his/her responsibilities to the collective / society / greater good. This appears to me more the American vision than what Canada was meant to be. But in writing a Charter, the nation itself does take legal responsibility for (most of) the most vulnerable and I think we should want to defend that.

But I think perhaps that Simone Weil saw this from a higher vantage point when she talked about human NEEDS: physical, social and spiritual. She listed these as a stable social order, then in pairs: equality AND hierarchy, autonomy AND consented obedience, truth AND freedom of expression, honour AND punishment/consequences, security AND risk, privacy AND social life, private AND collective property, and finally, the need for roots in community and family. Each pair was to be harmonized in a dance of freedom AND responsibility for the individual AND society.

To me this is genius, and it's no coincidence that she had Grant's ear. But it also seems very Canadian in practice... something we would (or should) want to live on our better days.

What I find deeply disturbing is when the Charter is abused as a tool for tyranny, completely missing its raison d'etre. But just as frustrating and dangerous are the Christian elements who are offended at imposed limits on their freedom to judge hatefully. I've been in prayer rallies where the leaders referred to the Charter as the 'Charter of Wrongs' because it sought to restrict them from employing Scripture as vitriol against the gay community. Christians who choose to identify gays as 'the enemy' should nevertheless remember that to be a Christian is to love, bless and pray for one's enemy, rather than mounting useless crusades against those they fear. Frankly, our track record of 'love the sinner' is abysmal (literally, 'from the abyss') and in that light, I thank God for the Charter (as far as it goes).

On these matters, I see in a mirror dimly. I would encourage Ron to weigh in with his brighter light at this point.


Wouldn't Trudeau's Charter or Rights and Freedoms be a prime example of the Liberal party's importation of American values?

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