TheStar.com
April 17, 2012
A new generation of “Charter kids” and “Charter judges” is advancing individual rights and diluting the “communitarian impulses” of Canadians, he said in a telephone interview from Saskatoon, where he teaches at the University of Saskatchewan.
Romanow played a pivotal role at the historic 1981 First Ministers’ Conference in Ottawa that paved the way to the signing of the Charter by the Queen on April 17, 1982.
As Saskatchewan’s attorney general at the time, he worked across party lines to help break a deadlock between then Prime Minister Pierre Elliot Trudeau and the premiers.
Joining him in brokering the Charter were Liberal Jean Chrétien, then-federal minister of justice, and Conservative Bill Davis, premier of Ontario, and his attorney general Roy McMurtry.
I spoke to all four for the landmark Charter anniversary.
Chrétien, Davis and McMurtry spoke glowingly about how the Charter has made Canada a more equitable society.
It certainly has, said Romanow. But it’s also opening the door to a more self-centred society.
“Before the Charter, we essentially looked for the resolution of federal-provincial disputes more from a provincial perspective, a regional perspective and a communitarian perspective.
“Now after 30 years we have empowered individuals and they have tried to enforce individual rights.
“We have a new generation of Canadians who don’t see Canada the way I saw it. My generation looked to over-arching Canadian values being predominant. And that meant that there were more opportunities of sharing, accommodating and compromise.
“When I teach today, I notice that these Charter kids think more individually. They have less of a historical connection to the notion of communitarian impulses. It’s almost like a different country now.
“They see Canada through an individual lens, whether it’s their gender rights or health rights. It’s worrisome because the answers are not always either/or.”
Romanow cited a 2005 Supreme Court decision rejecting Quebec’s prohibition against individuals buying private health insurance for publicly available health services.
A Montreal man waiting for a hip replacement had mounted a Charter challenge against the ban. The court’s ruling in his favour was seen as opening the door for private health case, thereby undermining medicare.
While medicare is a powerful national tool of collective Canadian action, Romanow said, “in its actual application, the impulses are all individualistic. This is the result of the culture of the Charter.
“This case is a cautionary tale that we may be weakening the ties and the fabric that bind this nation together and provide us with such programs as the Canada Pension Plan, the Quebec Pension Plan and national health care.
“In effect, the court was obligating the state on an elective procedure, regardless of the state’s ability. If you obligate the state to provide services at any cost, you inevitably end up going the privatization route.”
That leads to the American way. “Canadians see medicare as a social good. Americans see it as a commodity. That’s the sharp, sharp contrast between our societies.”
The lesson to be drawn, he said, is that governments must provide “social services in a timely and affordable fashion. If they don’t, the courts will get more and more into this game,” thereby redefining our social programs.
A couple of decades ago I had the opportunity to attend a symposium at the University of Regina wherein myself and Mr. Romanow exhanged differing views on whether the Charter style of a country's constitution enhanced or diminished 'democracy'. Since then, my commitment has grown stronger to the concept that the Charter is an opportunity for the development of a communal value based society.Contrary to both the social democratic and market models of governance, wherein two power structures (the state or the free market) dictate the parameters of a civil society through either benevolence or profit making,INDIVIDUALS AND GROUPS have access to a fundamental means to fetter the exercise of those powers - the courts. In my respectful view, any attempt to create a dichotomy between individual and collective rights exposes one to the tyranny of the majority, a tyranny that history shows is strewn with the bodies, literally, of millions of souls who are not part of the white, male, able bodied,heterosexual...majority. I would submit two views: that the Charter serves the communal obligation to promote, protect and enhance the social, political and economic well being of every individual which necessarily enhances our collective wellbeing and that it forces us as indivudals and as a collective people to embrace the responsibility to define our moral principles as a democracy thus holding our governments accountable to such.
ReplyDeleteWhen speaking about the Charter and its values, whether it be about the human rights of women Like pay equity), the GLBT community (like same sex marriage), unions (like collective bargaining, organizing and the right to strike) or aboriginal rights (like the Duty to consult), we speak in the words of human rights discourse. What does freedom feel and look like and what do the state and the corporations (like Pepsi) have to do to promote and promote our right to be and act human. And under section one of the Charter, do any limitations accomplish the stated purpose - to promote " a free and democratic society".
The courts are not replacing the elected structure. One has the right to expect that governments will govern themselves according to the laws of its citizens - like our supreme law, the Charter. If and only if they do not, the rule of law is there to hold them accountable through the peaceful non-violent means provided. Section 15, equality rights, amongst many other aspects of the Charter accomplish the collective communal ideal of freedom and the the right to be and act human with without fear.
From my perspective, democracy is about values that place us on a higher ground than majoratarianism - a qualitative