Morality has no chance facing off against the Charter

By  Ian Hunter
  • January 3, 2012

The next big battle facing Catholics is over euthanasia. Already a few preliminary salvos have been fired.

For example, an “expert panel” on euthanasia set up by the Royal Society of Canada recently reported: “The underlying premise — namely that all human beings are possessed of dignity in virtue of a special relationship to a God — is incapable of being used as a basis of public policy proven in the context of a democratic, multicultural and multi-faith society that must cleave to the strictures of public reason in ethical deliberation.”

Pierre Trudeau could hardly have said it better. It is to Trudeau and his Charter of Rights that we owe the almost complete transformation of Canada over three decades.

The battle over euthanasia will be lost for precisely the same reasons the battles were lost over abortion and over same sex marriage; namely Catholics and social conservatives fail to understand their adversary and where and how the battle is fought.

People draw comfort from polls purporting to show that many, or most, Canadians oppose euthanasia. I call this the “majority myth.” Polls once showed an overwhelming majority of Canadians opposed same-sex marriage. Same with abortion.

During the same-sex marriage battle several newspapers ran a full-page ad from an organization called “defendMARRIAGE.” It showed an attractive young woman smugly declaring: “The Charter of Rights and Freedoms is a great Canadian institution
. . . . Marriage is also a great Canadian institution … (Let’s not) use one great Canadian institution, the Charter, to destroy another great Canadian institution, marriage.”

Leave aside that marriage is neither an “institution” nor (thank God) “Canadian.” The big lie is the ad pretending to support the Charter. What needed to be said was the legal battle over same-sex marriage existed because the Charter existed, no other reason.

Section 15, the Equality Rights section of the Charter, is the trigger that allowed Canadian courts to launch such a radical re-ordering of society. In fact, the Charter is a blueprint for constant social re-engineering by the courts, and it is invidious for that reason. It is the antithesis of democratic self-government.

I would be surprised if the people behind the “defendMARRIAGE” campaign believed the Charter is a great institution. If so, they need professional counselling. But I suspect they knew just how damaging the Charter had already been yet nevertheless pretended to love it to promote their message. This kind of “heavenly deception” (a technique pioneered by the Moonies) is not only dishonest, it is on loan from the very totalitarian impulses that Canadians  should naturally oppose.

The ad finished with the winsome woman calling on readers to write to the Prime Minister.

But why bother? Anyone who likes the Charter likes its transfer of decision making from elected MPs, such as the Prime Minister, to unelected judges.

You may be sure that judges are not about to relinquish that power. The unavoidable reality is that Canada is now governed not by elected MPs but by appointed judges. And they are almost invariably liberal in their ideology.

So it makes little difference if it is Prime Minister Stephen Harper doing the appointing. Such judges see nothing wrong with courts legislating a liberal agenda that is (legislatively speaking) unpopular. Any campaign that ignores this is simply delusional.

This was the flaw in the campaign of the Citizen’s Centre for Freedom and Democracy when it erected billboards saying: “Gay Marriage? Let the People Decide.” Alas, the Charter is not subject to referendum. If 90 per cent of Canadians had voted against gay marriage, it would have made no difference because so-called “fundamental rights” are not subject to voter preference.

At the height of the same-sex marriage controversy, then Opposition Leader Harper promised legislation to propound a “traditional” definition of marriage? Well, where is it? It never materialized. But even if it had, it would have been useless. If the courts considered such a definition contrary to the Charter then any traditional definition would simply have been rewritten.

What almost everyone avoided in the same-sex marriage campaign was the only viable solution. It’s a solution that exists in the Charter itself — Section 33, the “notwithstanding” clause.

The answer was really quite simple: re-enact a traditional definition of marriage as between one man and one woman and then invoke s. 33.

But the Liberal Party has promised never to invoke s. 33. And Harper’s Conservatives have never done so. Thus was the battle lost.

Until Canadians understand how the Charter transformed Canada from parliamentary supremacy to judicial autocracy, all battles over moral issues, including euthanasia, will be lost even though elections may be won.

(Hunter is Professor Emeritus in the Faculty of Law at Western University in London, Ont.)

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