If you are in Canada, reading the ponderous and guarded thoughts of Frank Brennan in this morning’s Australian — on whether or not Australia should have a charter of rights, feels weird. Because Canada is a nation where the idea of not having a Charter of Rights and Freedoms is like the idea of it becoming the 51st state of the US.
Frank Brennan and his fellow fence sitters on the question of a human rights law to protect vulnerable people and communities, should spend time walking the highways and byways of Canada from Vancouver in the west to St John’s Newfoundland in the East, talking to ordinary citizens. What they will find is that Canadians share with Australians many of the same values and have a similar outlook on life, but they firmly believe that every person in their land is entitled to know that their rights and freedoms are protected by something more than the vague assurances of politicians.
The Canadian Charter experience is instructive for those politicians who like the idea of a charter, but who are scared easily by intellectually unethical conservative scare campaigns.
Canada first headed down the human rights protection path in 1960 with its first human rights laws. Then there was a Human Rights Act in 1977, and in 1982, Prime Minister Pierre Trudeau introduced the Charter of Rights and Freedoms, which gives constitutional protection to Canadians’ rights and freedoms. At the time, and since then, Trudeau’s critics have sniped at the Charter. It has allowed for judges to have too much power and has lead to a judicial coup d’état over the parliament; radical feminists and environmentalists have used the Charter to push their narrow agendas at the expense of the majority, are two of the most common refrains.
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The evidence however suggests that the critics were and are wrong. The Supreme Court of Canada, the equivalent to our High Court, plays a major part in the way the Charter works because it is the body that interprets the Charter. But has it taken over from Canadian Parliament as the critics allege? Absolutely not.
As the Ottawa Citizen reported in 2007 since 1982, somewhere between 450 and 500 cases based on the charter have made it to the Supreme Court of Canada. Patrick Monahan, dean of Osgoode Hall law school in Toronto, found that challengers were successful in just 35 per cent of those cases. The Ottawa Citizen noted on April 15 “not all those rulings resulted in laws being struck down, since many cases focused on procedural issues such as the need for police to warn suspects of their rights or be more careful about searches and wiretaps”.
But most importantly, the Charter has lead to the strengthening of Canadian democracy. Every opinion poll in recent years shows that the majority of Canadians like the idea of having the Charter to protect them against the excesses of the Executive and that they regard the Charter as being an overwhelmingly positive attribute of their country.
The average Canadian does not care a fig about the artificial debate which conservatives construct about judges engineering social change when they have a human rights law at their disposal. What they do care about is being able to go to court to compel a government department to fund a family that is being denied access to a program to help them care for a chronically ill grandmother, or a young woman who has suffered brain injuries in a car accident.
Frank Brennan has a chance to allow Australians to have the same access to human rights protections as Canadians. But he needs to stop agonizing over straw men constructed by opponents of human rights.