Freedom Shouldn’t Come with Caveats, but it Does

Media Appearances, Education, Frontier Centre

In Saturday’s National Post, my esteemed colleague, George Jonas, made the compelling case for why university attendees should not be compelled to join student unions. He would, of course, dispute the use of the word case, because the idea that people should not be forced to join involuntary organizations would seem to be self-evident in a free society.

Mr. Jonas correctly points out that such a right is upheld by the Charter of Rights and Freedoms, but that it only applies to government. Whether a publicly-funded school falls under the rubric of the Charter is a question for legal scholars and outside the scope of this analysis.

But Mr. Jonas goes on to take issue with a press release from the Frontier Centre for Public Policy, which stated that, “The exercise of individual rights and freedoms such as the freedom to associate should only be restricted if there is an urgent need to do so,” and that, “None of the arguments that are used to justify compulsory student unionism meet this test.”

“Wait a minute! What test?” asked Mr. Jonas. “There’s no test. If there were, those of us who consider it important to live in a free society might as well start packing.”

This is where my colleague is, unfortunately, mistaken. There is a test, known as the Oakes test, which highlights the glaring inadequacy of the Charter to uphold our fundamental freedoms. I guess us freedom-loving Canadians better start picking out our luggage.

Mr. Jonas is not the first scholar to view some human rights as self-evident. The framers of the American constitution believed it “self-evident” that “all men are created equal” and that we have the “unalienable” right to “Life, Liberty and the pursuit of Happiness.”

But while America was born of revolution, Canada was formed through the same evolutionary process that created the dodo bird and the platypus — when Canada’s Constitution was patriated in 1982, our politicians were less willing to cede power to the individual.

This is shown by the fact that eight of the 10 provincial premiers tried to block the Charter by drafting their own version of the Constitution. The eventual compromise resulted in the worst stipulation ever conceived of in the drafting of a codified rights document.

On the evening of January 12, 1981, justice minister Jean Chrétien sat in front of the special parliamentary committee on the Constitution. “I am proposing that Section 1 read as follows: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” he said.

“This will ensure that any limit on a right must be not only reasonable and prescribed by law, but must also be shown to be demonstrably justified.” Translation: “This will ensure that even though we pretend the public has rights that are fundamental to any free and democratic society, we can take them away at will, so long as we can convince a judge that such measures are justified.”

The language used by Mr. Chrétien would eventually become Section 1 of the Charter, which gives government the constitutional cover to infringe the supposedly “fundamental freedoms” that follow it. In order to figure out when such infringements are in fact justified, the Supreme Court came up with the Oakes test.

Using this two-step process, laws that violate our Charter rights must have a “pressing and substantial” objective, and the means of effecting the limit must be reasonable and proportional. The infringement has to be connected to the law’s objective; it has to be as minimal as possible; and it must balance the consequences of such a limitation, with the objective that is being sought.

So while Canadians do enjoy a great deal of freedom, there are certainly limitations placed upon those freedoms. And while Mr. Jonas argues that sometimes there may even be “justifiable homicide,” it is a travesty that we have allowed the state to murder our liberties in such a way.