Liberty & Canada's Charter

[August1991]

This is a good read because it raises two good questions: to what extent should the State have the right to limit a citizen's freedom, and how has this experiment to answer that question worked out in practice in Canada?

Widespread ridicule from abroad has apparently caused the Iranian government to back down on outlawing certain hairstyles for men -ponytails, for instance.

Nevertheless, Iranians have been subject to grooming and dress codes for decades. This summer, Iranian police have been arresting women for such heinous offences as wearing too much lipstick or sporting sun tans. Barber shops have been ordered by police not to pluck men's eyebrows.

Do the people of Iran enjoy liberty? Most Canadians, upon hearing of these bizarre rules, would respond with a resounding "No!" Such regimentation, enforced by law, spells full-fledged authoritarianism to us -the very antithesis of liberty.

But how does our law compare? The Canadian Charter of Rights and Freedoms appears to provide a good foundation for liberty, enshrining it as a right that cannot be infringed by the state unless the infringement is both reasonable and "demonstrably justified in a free and democratic society."

....

It's time for the courts to re-think those late 1980s decisions and realize that yes, liberty under the Charter must be synonymous with unconstrained freedom, and the state must bear the burden in every single case of demonstrating why violating liberty is justified.

Karen Selick, The Gazette

[August1991]

Re-reading this, I think I may have misworded my OP - given the crazy times we live in.

People in wheelchairs are not free to walk so to say "...to what extent should the State have the right to limit a citizen's freedom... ", some might conclude that I meant that the State has an obligation to make wheelchair-bound people free to walk.

That's not my understanding of Liberty, or a Constitutional Charter.

----

As the link in the OP makes clear, the Charter restricts solely (and supposedly) the federal government. The Charter limits the powers of the federal government. That's all. Well, in theory.

The Charter also includes the phrase "demonstrably justified in a free and democratic society". Whatever the original intention to include this phrase (and I think Sterling Lyon has unintentionally some blame to carry), its inclusion has somehow opened the door to an entirely different view of "rights". They are now interpreted as entitlements or State-obligations. (The State should ensure that wheelchair-bound people can walk, or enjoy a life as similar as possible to people without motor problems.)

Or then again, maybe progressive common law justices have just run amok with a Civil Code Charter - they are like policemen who discover computers. "This device will record things and then I can find it whenever I want?"

Edited September 3, 2010 by August1991

[Shwa]

Hmmmm, this is a very good article - thanks for the link!

We won't linger on the practical application of the dictionary definition of the word 'liberty' compared to the practical application of it's definition in a Constitution, but the article seems to boil down to this:

It's time for the courts to re-think those late 1980s decisions and realize that yes, liberty under the Charter must be synonymous with unconstrained freedom, and the state must bear the burden in every single case of demonstrating why violating liberty is justified.

I tend to agree with this sentiment IF it only means a change in attitude towards how Charter questions are weighed and does not mean tossing the criminal code out on its arse. The tricky part is that eventually precedence will start to kick in and could have unexpected results, even in the short term. Do we want to do down that road?

I mean, is it a violation of liberty to maintain a conservative defintion of liberty within the practical application of constitutional questions?

Or even still, would you want a lawyer answering such questions? {shudder!}

[eyeball]

I mean, is it a violation of liberty to maintain a conservative defintion of liberty within the practical application of constitutional questions?

Or even still, would you want a lawyer answering such questions? {shudder!}

A politician would probably be just as bad.

In any case I'd want a liberal definition when it comes to my liberty.

Are you allowed to flat out ask people if they are left or right wing when picking or eliminating a jury of your peers?

[Shwa]

A politician would probably be just as bad.

In any case I'd want a liberal definition when it comes to my liberty.

Are you allowed to flat out ask people if they are left or right wing when picking or eliminating a jury of your peers?

Yeah, but what is a "liberal definition" of liberty? Is that what "unconstrained freedom" means? Heck, even the dictionary definition has limits.

[eyeball]

Yeah, but what is a "liberal definition" of liberty? Is that what "unconstrained freedom" means? Heck, even the dictionary definition has limits.

However you define the opposite of a conservative definition is fine by me. Even better conservatives should just go away and apply their definition to themselves to their hearts content.

[Shwa]

However you define the opposite of a conservative definition is fine by me. Even better conservatives should just go away and apply their definition to themselves to their hearts content.

You misunderstood. "Conservative" in the sense of moderation, caution, preservation and slow, incremental change. The word "conservative" does have meaning outside of the purely political as does the word 'liberal.'

Edited September 4, 2010 by Shwa