Coyne: Conservatives’ incoherence really shows with Charter of Rights discontent

A Canadian flag flies on under the Peace Tower ahead of the resumption of parliament in Ottawa Wednesday March 3, 2010. It's back to the business of politics in Ottawa today with a throne speech from the Harper Conservatives. Photo: Adrian Wyld/The Canadian Press/Files

I credit Stephen Harper with this one. “A conservative,” I recall him saying once, “is someone who wants to abolish the Charter of Rights and amend it to include a property rights clause.” It’s a good line. It’s also, in some cases, quite literally true.

Amid the generally incoherent state of conservatism in this country, the movement’s continuing inability to come to terms with the charter, three decades on, is perhaps the outstanding example. People who supposedly stand for limited government get surprisingly antsy, once in office, about having their own discretion circumscribed. That they profess to do so in the name of Parliament only compounds the incoherence. Who do they think passed the charter?

Until now the complaints have been confined for the most part to the usual nameless backbenchers: a thousand years of parliamentary tradition, judge-made law, what did we fight the war for, etc. But with the government’s losing streak at the Supreme Court in danger of hitting double digits, the discontent has begun to break into the open.

Conservative Sen. Bob Runciman, writing in the National Post, advises those judges who “appear to believe they have authority, courtesy of the Charter, to set government policy,” to “hang up your robes and run for office.” I say again: Conservative Senator Bob Runciman.

Meanwhile, over on the democratically elected house, unintended irony was also the order of the day. In a story bearing the imperishable headline “Conservatives warn of diminishing Parliamentary power,” Conservative MP Larry Miller told the Post’s John Ivison of his growing dismay that the “courts are making laws.”

“I’m all for rights and freedoms,” he said, “but the Charter complicates things.” The problem, as far as rights and freedoms are concerned, is that we have “complicated” them by writing them into law.

This is a common refrain among conservatives. We’d always gotten along fine without a written constitution, you will sometimes hear them say, in the apparent belief that the British North America Act, not to mention Magna Carta, the Petition of Right and the Bill of Rights 1689, were elaborate works of mime. The idea of codifying rights in law they tend to regard as a vaguely Gallic plot, perhaps forgetting Canada’s original Bill of Rights, the handiwork of a certain John George Diefenbaker.

Miller does not disappoint. “Pierre Trudeau,” he said, “did this willfully and deliberately, taking rights away from the majority to protect the minority.” Can you believe it? Protecting the minority. I mean, who the hell elected him?

Let’s try this again. All laws, not just constitutions or charters of rights, constrain government discretion. That’s the point. We want governments to act in predictable, non-arbitrary ways, confined to the powers we explicitly grant them through our elected representatives. If we didn’t want to do that, we wouldn’t have laws. We’d let them rule by decree.

The only difference with a constitution is that it’s harder to change. It’s not enough to have Parliament write a new law: We have to get the provinces to assent as well. Before 1982, we had to get the British Parliament. But it’s always been true in this country that any law found inconsistent with the constitution was declared to be of no force or effect. Who decided such things? The courts: the Supreme Court, and before them, the Judicial Committee of the Privy Council.

It’s always been true in this country that any law found inconsistent with the Constitution was declared to be of no force or effect. SEAN KILPATRICK/THE CANADIAN PRESS/FILES

Before 1982, these cases usually involved disputes between different levels of government, each vigilant that the other not intrude on its prerogatives. All the charter did was to add a second line of demarcation: between governments and citizens. The charter did not invent the concept of judicial review, or for that matter of judicial activism: have a read of the Judicial Committee’s decisions sometime if you want some examples.

The point of judicial review is not, as it is sometimes said, to give judges the last word. It is to hold Parliament to its word. If the law is to serve its intended role of constraining government discretion, you can’t simply leave it to governments, or even Parliament, to interpret it for themselves. If laws meant whatever governments felt like on any given day, we might as well have rule by decree. Hence the need for an independent arbiter. And who assigned them that role? Why Parliament, of course.

“Judges don’t always get it right,” colleague Ivison observes. No, they don’t — neither do politicians, if you’ve noticed. But governments have lots of options in the face of an inclement ruling. They can redraft the law, for starters: It’s usually possible to preserve its purpose while removing the offending provisions. Beyond that? Amend the constitution. Appoint better judges. Make the case for a more restrained theory of jurisprudence. Change how the law is taught. Conservatives used to pride themselves on taking the long view of things.

Meantime, if Conservative MPs are so concerned about the powers of Parliament being usurped, I suggest they look closer to home. As defenders of Parliament, they’d be a lot more convincing had they not spent the past many years meekly surrendering one ancient Parliamentary prerogative after another, not to the courts, but to a far more voracious usurper: the executive.

Or if it’s the courts they’re worried about, there’s a simple way to remove them from the equation: Stop passing laws that are so clearly and flagrantly in violation of the Constitution (see, for example, the prostitution bill). Insist, as the political scientist Emmett Macfarlane has suggested, that ministers screen bills for charter compatibility before introducing them in the House. Better yet, have committees of Parliament do the same.

As things stand, MPs seem content to abdicate this responsibility to the courts, so they can pick fights with them later. “Why elect people and pay them to do something the courts are doing,” Miller grumbles. Why, indeed.