Hon. Andrew Cardozo: My question is for the government leader in the Senate and it concerns the Canadian Charter of Rights and Freedoms.
This week was the forty-first anniversary of the Canadian Charter Rights and Freedoms. This document, which is embedded in our Constitution, is one of the key statements about who we are as Canadians, our society and our values, and includes gender equality, Indigenous rights that date back to the Royal Proclamation of 1763 and freedom from discrimination based on race, national or ethnic origin, colour or religion. Yet, we run the risk of this foundational declaration being frayed at the edges with the use of the “notwithstanding” clause and the attacks on minority rights, whether in the courts, in slogans or online campaigns.
Senator Gold, what is your reading about how secure our Charter of Rights and Freedoms is, and what do you think needs to be done to defend its sanctity?
Hon. Marc Gold (Government Representative in the Senate): Thank you for your question.
The Charter has been a fundamental transformative element in our Constitution since its enactment in 1982, and in that regard, it has had impacts that even surpassed the expectations of those who lobbied for it and worked hard to see it come to light.
It has transformed the work that we do here in the Senate. It has been an increasingly present part of our discussions and our role as we see it as senators to make sure that the Charter rights of Canadians are taken properly into account and respected in the laws that we are called upon to study and ultimately pass.
It is true that the pre-emptive use of the “notwithstanding” clause is something that is a preoccupation to many of us and, indeed, this government, as the Prime Minister has announced on many occasions.
The “notwithstanding” clause is — we have to remind ourselves — part of the Charter and was part of the bargain that allowed the patriation of the Constitution to happen. It is the government’s position that it should be used appropriately, and not irresponsibly, and in that regard, this issue is currently before the courts, as you know.
I have confidence, though, that the Charter has transformed the way we Canadians see ourselves in many different ways, and I believe it is secure in that regard. It is certainly secure in this chamber.
Senator Cardozo: There are some who believe that the Charter ensures this new thing, “the right to offend.” There are others in last year’s convoy who believed that they had the right to park their rigs in front of the Parliament Buildings forever, because it was in the Charter. It seems that we are seeing the rise of polarization, extremism and anarchy.
Does ensuring human rights into the Charter allow for anarchy?
Senator Gold: Senator Cardozo, you’re dragging the law professor out of me, aren’t you?
One of the contributions that the Canadian Charter made to public discourse about rights is to make it clear, through section 1 of the Charter, that rights, however expansively they might be drafted in text, are not absolute in the sense that they are not subject to other countervailing rights, interests or considerations. In that regard, our Charter, like all charters, recognizes the necessity to place parameters and limits around the exercise of rights that would otherwise be unbounded.
It is a premise of our Constitution, and not only because the preamble says “peace, order and good government,” that our Constitution and our institutions exist to provide for order and liberty, freedom and justice. From my understanding of what you meant by “anarchy,” I think it is inconsistent with those. I think the Charter is there to protect those rights that need to be exercised in the context of our liberal democratic constitutional framework.