Bow down and proclaim fealty to the almighty charter
Canada's Parliament just reconvened. It might seem a singularly inauspicious time to discuss proper self-government. But I must protest the growing conviction that it is not only wrong but offensive to think the majority should set the ground rules for our political life. I am pleased Justice John Gomery has decided to remain at the helm of his inquiry. But why has it become the focus of efforts to uphold public ethics while Parliament is again reduced to a carnival sideshow with partisan points for the lucky winner? How did the representatives of the people cease to be the principal guardians of the public purse or any other public interest?
Unless you make your habitation beneath a singularly large and heavy rock, you will have noticed that the debate on gay marriage has made the very notion of majority rule distasteful to the chattering classes. Gilles Marchildon, of EGALE Canada, just said, "To subject minority rights to a popularity contest, I don't think that's a way to lead a country." The minister of state for public health, Carolyn Bennett, recently opined that "minority rights isn't a place where majority rules." Buzz Hargrove in Monday's Financial Post wrote, "it never occurred to me to call an election in my union over same-sex rights ... a referendum on minority rights ... makes no sense at all ...." He went on, "Protecting the Charter of Rights takes leadership. Martin will need to continue to stay strong on this issue."
There's some discrepancy here. From where does Ms. Bennett think she derives her authority if not from the principle of majority rule? And please desist from vain chatter about its imperfect reflection in our electoral practice. From where else would Paul Martin derive authority to uphold the Charter than as representative of the closest thing to a majority in the last election? Or to appoint judges to interpret it? Where, indeed, did the Constitution and Charter came from? It's majorities all the way down. As Andrew Coyne, though he opposes any use of the notwithstanding clause, notes with exemplary clarity, "Rights may exist in the abstract as a matter of natural law, but they exist here on Earth because majorities decide they should."
Federal Justice Minister Irwin Cotler was quoted in Wednesday's Citizen that "You can't have a referendum to override the Constitution of this country." Well then, how do you override it? In the United States, they use Article V of their Constitution. As the locus of their self-government, it has primacy over legislatures, but the people have primacy over it. It is a device, famously, for ensuring on key questions an appeal from the people drunk to the people sober, not from the people to some unspecified but less disgusting entity.
Our system is different. The locus of Canadian self-government is Parliament. It had primacy over any written document (hence the ancient rule that no Parliament can bind its successor), but the people had primacy over it. If that's no longer true, please tell me what took its place, when and why.
The answer appears to be: the Charter itself. Like God, it is self-grounding. It created itself, and interprets itself. Mr. Cotler calls it "the expression and entrenchment of our rights and freedoms, the codification of the best of Canadian values and aspirations. It defines us as to who we are as a people and what we aspire to be." Bow down, O ye people! And Paul Martin thundered on about the Charter and his refusal to use the notwithstanding clause at such tedious length that L. Ian Macdonald in the Montreal Gazette retorted, "Ah, Paul Martin, fearless champion of the Charter. Apparently, he doesn't understand the charter. Not only is the notwithstanding clause part of it, there would be no charter without it."
Some may grant this point only in the sense that a cockroach that falls into your soup becomes part of it. The Globe and Mail sneered editorially about "a little-used instrument that enables Parliament to trample on an equality right ..." To others, one fears, its inclusion was necessary, but only to conceal from the rubes the abolition of self-government. Wiser heads might maintain, even in parliamentary debate in the twilight of our democracy, that it was included to prevent such a development. They might call it the most important clause in the Charter, the guarantee of self-rule through Parliament, of an appeal not from the people but from the people drunk to the people sober.
True, one's first thought on entering question period is unlikely to be, "Here, at last, is true sobriety." Perhaps if we heard more political philosophy and fewer monkey noises ...
[First published in the Ottawa Citizen]