Karen Selick is the litigation director for the Canadian Constitution Foundation. This article is excerpted from The Lawyers Weekly.
Liberty in Canada?
Don’t count on it
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.”
But something peculiar happened when this framework for safeguarding liberty started coming under the scrutiny of our courts. Judges started chucking out many activities that the average person would probably expect liberty to include, virtually eviscerating the concept.
In 1986, for instance, Chief Justice Brian Dickson wrote: “ In my opinion ‘ liberty’ in… the Charter is not synonymous with unconstrained freedom.”
Well that’s an interesting opinion, but it is contradicted by the dictionary. “ Liberty” does indeed mean the condition of being free from restriction or control.
Why should “ liberty” in the Charter be interpreted differently from “ liberty” in the dictionary? The answer seems to be that the courts hate making decisions about what is demonstrably justified in a free society, so they try to prevent cases from ever reaching that stage.
Over the years, litigants have come to court thinking that liberty would encompass such things as transacting business at whatever time of day one chooses, engaging in the medical profession after being licensed, and smoking marijuana for recreational purposes in the privacy of one’s home.
Rather than making the decisions that the Charter requires of them as to when such activities can legitimately be restricted by the state, the courts have often just chickened out. They’ve simply defined the targeted activities out of the realm of liberty. If smoking pot for kicks is not part of liberty, the law prohibiting it obviously can’t abrogate liberty. A little sleight-of-hand and— poof !— the tough decisions vanish.
Since 1988, only “ decisions of fundamental personal importance” have been allowed to remain within the realm of Charter liberty. There haven’t been many that filled the bill. Aborting a fetus was one. Smoking marijuana to prevent epileptic seizures was another. Those cases that have qualified are dogged by the unavoidable suspicion that the outcomes have more to do with the personal predilections of the judges than with any predictable or objective standard.
Take abortion. While the decision to terminate a pregnancy might be monumentally important for some women, others seem to shrug it off with bored indifference.
The test of fundamental personal importance is so subjective and immeasurable that adopting it was wildly imprudent in the first place.
So how do we compare to Iran after all? Do Canadian men have a Charter right to wear ponytails or have their eyebrows plucked? Do Canadian women have a Charter right to wear heavy lipstick and sun tans? Obviously not, according to Canadian jurisprudence. Those aren’t “ decisions of fundamental personal importance.”
But that’s ridiculous. Of course Canadians should have the liberty to make such decisions for themselves. If we can’t be trusted with the responsibility for minutiae like that, why should we be considered competent to handle the important issues? How will we ever acquire the necessary wisdom and character for important decisions if we can’t practise on the small stuff ?
And if the average citizen can’t be trusted on such issues, what qualifies our elected representatives to govern the entire populace on them? Does winning an election bestow instant infallibility upon a politician who was deemed too stupid to determine his own hairstyle?
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.