Since 1982, Canadian courts have decided hundreds of cases dealing with the interpretation of section 1 of the Charter of Rights and Freedoms. Section 1 of the Charter provides that 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”.
As such, Under section 1 of the Charter, governments can infringe certain rights and freedoms if doing so can be justified in a “free and democratic society.” But what is a “free and democratic society”? Is it something that can be measured, or is it a hollow feel-good notion devoid of any specific meaning? Is it an ideal with identifiable characteristics, or is it something we are indoctrinated to believe we already have?
No such clearly definable standard exists. Yes, we have the Oakes test that provides step-by-step instructions for the Courts, so they can measure whether a specific violation of the Charter is justified under section 1. However, this is merely a proportionality test that balances the social importance of the proclaimed goal, the gravity of the intrusion and the importance of the right being violated.
The Supreme Court of Canada’s decision in R. v. Oakes described the underlying values and principles of a “free and democratic society” as “the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.”
Oakes offered a checklist of values and principles:
respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.
Not only is this checklist critically insufficient, some of its components, such as “social justice,” are, in fact, features of unfree societies.
The Oakes decision clearly falls short in explaining what these underlying values and principles are. Subsequent decisions modified the proportionality test but did not do much in the sense of providing a meaningful definition of what a “free and democratic society” is.
In 1982, the words “free and democratic society” had a political context: They also meant a society that was unlike Soviet Russia and its socialist satellites. The distinction seemed very clear, because the Eastern Bloc countries were also happy to distance themselves ideologically from the Western values of individualism and capitalism. The extent of most people’s understanding of the distinction was limited to the vague realization that people in “free and democratic societies” had the ability to visit other countries, to purchase a wide selection of foods and toilet paper and not to be shot in the head for having non-mainstream views. With the collapse of the Soviet Union, we can no longer be satisfied with a political regime if it is only slightly better than that in North Korea. If being more free and democratic than North Korea is our standard, then anything goes. If this is our standard, then we truly have a problem.
If the words “free and democratic society” are to have meaning, then we can no longer rely on what the greater number of politicians and judges consider policy de jour. We have to go back to the basics, to involve an analysis of the proper role of government and the true scope of individual rights. We need to revise the idea of whether a utilitarian approach to individual rights is justified. This article does not purport to answer all these questions; its main goal is to draw the attention of the reader to the problem that the major qualifying factor in s.1 of the Charter has been deliberately left without proper interpretation.
Let us look at the meaning of these three words in isolation.
What does the word “free” mean? Free from whom? Free from what? Free to do what?
Dictionaries offer three main branches of meanings for the word “free”: (1) having the legal and political rights of a citizen; (2) not a slave; (3) able to act as one wishes; not subject to the control or domination of another; choosing or capable of choosing for oneself.
Which of these meanings is implicit in s.1 of the Charter?
It is highly doubtful that the idea was to make sure that limits prescribed by law do not reinstate slavery in its literal form. We would not need all of the jurisprudence if this were the case. Even though the government routinely violates individual rights, never did it attempt to bring back slavery.
It cannot be that the word “free” was used in the sense of “having civil and political rights,” since it would amount to a tautological statement that civil and political rights can be limited to the extent justified in a society of people having civil and political rights.
If the word “free” is to have any real meaning, it has to involve not being subject to the control or domination of another, whether it is an outside force, the force of the national government or the force of other people or organizations.
If this is the goal, then today’s overly regulated Canadian society is very far from it. We do not have the right to build a house on our own property unless the house meets a government-imposed standard; we do not have the right to receive legal advice from someone who has not obtained the costly blessing of the provincial law society; our private health care options are dismally limited; the government is extorting our property through taxes and spending it on purposes that go against our beliefs; successful businesses are being thwarted by arbitrary anti-trust laws, while the government feels free to create its own government-backed monopolies; our freedom of expression is being reduced to saying politically correct things that will not offend anybody. The list goes on and on and on.
Some may argue that the government’s intervention in our everyday lives is a good thing. Even if this were the case, even if the goals were noble and the results were positive, it is still a restriction of our freedom. Most totalitarian regimes started with noble goals and seemingly positive results. This is the reason Mussolini’s despotism under the guise of noble goals has been so widely praised by all types of intellectuals around the world, including Roosevelt and Churchill.
To summarize, if the word “free” is to have any meaning, it should mean something more than whatever freedom remains after the government has finished restricting it.
Nevertheless, this is not what is happening. The proportionality test under section 1 is based on the utilitarian model of rights, which implies that it is proper to limit rights and freedoms of one group of people if a larger group of people may benefit from it. True freedom of an individual or a group of individuals can never come at the expense of dispensing with the freedom of someone else.
This is precisely why courts do not offer a sensible interpretation of the word “free”: The proportionality test does not fit well with true freedom; therefore, the Courts base their opinions on what they think will create the greatest good for the greatest number of people at the expense of the least amount of misery for everyone else.
The word “democracy” has two primary meanings: (1) a government by the people (especially the rule of the majority) and (2) a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation that usually involves periodically held free elections.
Again, back in 1982, the word “democracy” had the political context that distinguished Western democratic countries from despotic socialist and totalitarian regimes. The word automatically created a warm and fuzzy feeling for those who were fortunate enough to live in the West.
Democracy as such is just a procedure. Is majority rule a good thing or a bad thing? Well, that depends on the scope of questions that are subject to the majority’s decisions.
As Ayn Rand put it, “democratic” in its original meaning refers to unlimited majority rule, “a social system in which one’s work, one’s property, one’s mind, and one’s life are at the mercy of any gang that may muster the vote of a majority at any moment for any purpose.”
Is it proper to kill 40 per cent of the population if 60 per cent democratically chooses to do so? Is it proper for 99 per cent of the population to vote in favour of expropriating the property of the remaining 1 per cent? Both of these questions deserve a resounding “NO” for one simple reason – it is improper to violate individual rights regardless of how many people would benefit from such violation. Democracy does not guarantee freedom, fairness or justice – it is common knowledge that Hitler was democratically elected and that for a long time, his decisions were widely supported inside and outside of Germany.
If section 1 of the Charter uses the word “democratic” to justify anything that is supported by the majority of the electorate, then we are facing a contradiction, since the Charter is meant to protect not only the majority, but also minorities, including the smallest minority, the individual.
If section 1 of the Charter uses the word “democratic” to justify anything that is properly voted on by democratically elected representatives, then we are facing a meaningless constitutional clause, since otherwise it is very difficult to see what other limits prescribed by law this section could save.
The scope of questions that are properly decided by the majority is very limited. The majority should not force anything that a single representative of the majority cannot do on his or her own. Thomas Sowell has famously written:
What do you call it when someone steals someone else’s money secretly? Theft. What do you call it when someone takes someone else’s money openly by force? Robbery. What do you call it when a politician takes someone else’s money in taxes and gives it to someone who is more likely to vote for him? Social Justice.
What distinguishes the government from all voluntary associations is that the government has the ability to enforce norms against those who do not agree with it. Therefore, free individuals do not create governments to set up a safety net or to guarantee the well-being of the electorate by infringing upon the rights of those who do not wish to be a part of such a safety net. The only reason for the government to exist and to possess the monopoly on enforcement of the rules that it creates is to protect individual rights and freedoms. These rights and freedom are all negative rights in that their exercise requires only that everyone abstains from a violation of these rights; it does not require the compulsion of anyone into a positive action.
This reduces the proper roles for the government to an efficient military that protects the country from outside invaders; police that protect the population from robbers, murderers, rapists and marauders; and courts that provide a proficient mechanism for the resolution of disputes. Governments are failing spectacularly in all three roles, yet they usurp more and more power to intrude in our lives where it is improper for them to do so.
If a goal is truly socially important, there will be enough people to ensure that the goal is fulfilled voluntarily. If there are not enough people to fulfil a goal voluntarily, then we cannot call the goal socially important, and, therefore, there is no reason for the government, no matter how democratically elected, to force such a goal upon the populace.
The argument that the government should take care of every little aspect of our lives is unfortunate, because it implies that people are incapable of taking care of themselves, yet they are somehow capable of electing (from their own numbers) someone who will be capable of taking care of everybody else. This is simply not the case.
Again, the Courts do not wish to properly interpret the word “democratic” for the same reason they do not do it for the word “free.” It would require the complete rebuilding of Canada’s political and legal system. Therefore, the Courts are content with the inherent contradiction of having laws designed to protect the interests of minorities based on how the majority feels about the protection of such interests. In other words, we only protect the interests of the minorities that the majority thinks are important enough to protect. This is what the Courts call the “balancing of interests.”
Mr. Justice La Forest, writing for the Supreme Court of Canada in Ross v. New Brunswick School District, found “the Oakes test should be applied flexibly, so as to achieve a proper balance between individual rights and community needs.”
The problem with this finding, of course, is that no such thing as “community needs” exist, because there is no such entity as a “community.” A community is nothing more than a group of individuals, each of whom has his or her own individual interests and rights.
A right that can be voted away by the majority is not a right; it is a privilege, a licence. The Courts are quick to make the statement that no rights are absolute. The only proper case for the limitation of true rights is when the person whose rights are to be limited has violated the true rights of someone else. No other reason can be justified among free people.
Adding modifiers or adjectives to the word “justice” distorts the only true type of justice, “Justice.” Social justice sees self-sacrifice for the common good as a public virtue, while frowning upon the self-interest of the individuals of whom the public consists. Social justice by definition requires doing away with the legitimate function of the law in protecting persons and property and switches to the forced transfer of income and wealth through market interventions, disproportionate “progressive” taxes, anti-trust laws, impossible regulatory frameworks and outright expropriation. Government-granted welfare rights take the place of natural freedom and property rights – this is what Frédéric Bastiat called the “legal plunder” of “forced fraternity.”
How is it possible to evaluate what is justified in an entity that does not exist? There will always be people who disagree with the majority. Are their opinions irrelevant in assessing what is justified in a “free and democratic society”? If the answer to this question is yes, then we have a tyranny of the majority. If the answer to this question is no, then we have an unworkable standard simply because it is impossible to reconcile all possible opinions.
Canadian courts have decided hundreds of cases dealing with the interpretation of s.1 of the Charter. None of them provides a meaningful framework of what a “free and democratic society” is. The interpretation is reduced to the utilitarian standard of proportionality: whether the misery inflicted on one group of people is justified if it achieves a proportionally beneficial result for another group of people.
During the 30 years of the Charter’s lifetime, the Courts have thus justified mandatory retirement, criminalization of the possession of child pornography, federal regulations dealing with interprovincial trade in eggs, provisions of the Criminal Code and the Canadian Human Rights Act that prohibit hate propaganda, prohibition of lap dancing, prohibition of “not allowed” stickers depicting various races, limiting the right to practise public accounting for compensation to members of the Institute of Chartered Accountants, establishment of quotas for the maximum number of physicians in general practice for each region in the province, prohibitions on erecting satellite dishes on one’s private property without a city license and a myriad of other limitations and restrictions.
Again, the purpose of this article is not to discuss whether these decisions did more harm than good. Its focus is to demonstrate that the words “free and democratic society” became a wild card, the value of which, the courts are not even looking at.
The proportionality test does not fit well into a framework based on free individuals. Society can only be democratic and free if democracy is not the synonym for mob rule by the majority. The scope of decisions that one group of people may make for another group of people must be dramatically reduced for this to happen. This will only occur if the government is reduced to its proper role of protecting individual rights.
Until then, the Courts will have no choice but to treat the words “free and democratic society” as a hollow catchphrase that can be easily replaced by a proportionality test or some other test that seems appropriate. Minorities, including nonconforming individuals, will have to pray that their views are of sufficient social importance to not be sacrificed in the name of the public good.
Happy Birthday, dear Charter!
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