Citizens Centre for Freedom and Democracy

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WEEKLY COMMENTARY
"Just Between Us"

January 17, 2005

When will Martin live up to the Charter and protect majority rights?

Everyone assumes that the Charter of Rights is there just to protect people from the allegedly stupid prejudices of democratic majorities.

Not so.

The Charter also exists to protect the majority from the prejudices of judges and minorities. Most people have never been told this, but it's true.

When, as with same-sex marriage for example, judges expand or change personal or minority rights, the Charter of Rights allows the government, with the approval of Parliament, to set that ruling aside.

It's our collective legal right as Canadians to correct the judges through the people we elect.

This collective right, explicitly stated in section 33 of the Charter, is just as real, just as legitimate and just as constitutional as all the rights of individuals and minority groups contained in other sections.

When our politicians wrote and approved the Charter as an addition to the Constitution in 1982, they included section 33 (commonly called the "notwithstanding" or "opting out" clause) as a democratic safeguard--as Chretien once explained, in case the judges get it wrong.

This is one of the greatest differences between the Canadian and U.S. systems of government. In our tradition, before the Charter and since, the people we elect have the ultimate say over rights. In the U.S., that role falls to the courts.

I prefer the Canadian way.

Judges are always captive to faddish theories, and are not the people best-suited for changing the basic ground-rules of society. At $250,000 a year they are now the highest-paid occupation in the country, and can afford to be impractical.

They certainly don't have to run for election.

Well, you might say, Martin is bringing a "gay marriage" Bill into Parliament this winter. Isn't that democratic?

No, it is just cynical. If the Bill passes, gay marriage will be legal in all ten provinces. But if it fails, it doesn't mean Parliament will invoke our section 33 Charter right. Gay marriage will remain legal in eight provinces, courtesy of the lower courts.

In fact, Martin has said again and again that governments should never opt out of any rights ruling by the courts under section 33.

"The courts have given their direction [on marriage]," he said on December 12. "I think that Parliament ought to accept their responsibility."

"In a nation of minorities," he told CTV on December 27, "you can't allow the majority to basically impose its will on a minority, and so the Charter is crucial to our democracy."

Note that he isn't saying he won't opt out of only this court ruling. He's saying he won't opt out of any.

Oh? Which other principles of our constitution does he refuse to uphold? The "equality" clause? The bilingualism sections? Why just section 33?

And it isn't just Martin. There are a whole bunch of MPs in all parties saying the same thing. If they keep this up, we will lose our democratic right to correct the courts--on this issue or any other.

With the government so bent on giving away our democratic rights, the only solution is a loud nation-wide demand for a marriage referendum.

To send a message to this effect to Martin, along with other key parliamentarians and the Supreme Court, go to www.MarriageReferendum.ca and follow the prompts.

Speak now, or forever hold your peace.

- Link Byfield

Link Byfield is chairman of the Edmonton-based Citizens Centre for Freedom and Democracy, and an Alberta senator-elect.

"Just Between Us" is a feature service of the Citizens Centre for Freedom and Democracy. The purpose of the Citizens Centre is to enhance freedom and democracy by enabling ordinary citizens to become active and effective on important issues outside the normal processes of party politics.

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