Saturday, January 02, 2010

The Charter has Changed Everything

I have to review a book for an academic journal and I will confess that I am having a hard time doing it. I won't get into specifics but the problem I'm having is that it is a really, really, really bad book. The book, in fact, is so bad that I'd give it a C- if it were submitted as a paper to my 2000-level intro. It might fail my 4000 level seminar. You can see my dilemma: one does not want to be overly negative but this book is so laced with problems that I don't know where to start.

The one interesting thing that, perhaps, comes out of this text is the argument that the Charter of Rights and Freedoms "changed everything." What is interesting about this argument is that it tends to be made by both those who opposed Charter rights and those who support them. Obviously, the different "sides" in a discussion of the merits of Charter rights view this development in different ways. Those who oppose Charter rights argue that it is undemocratic to have courts make important decisions while those who support them argue that fundamental rights must be respected regardless of whether or not legislatures support them. In this debate I side up with the fundamental rights argument but that is not my point here. My point is a question: has the Charter changed everything? Or, perhaps more widely, has "judicial activism" changed everything? What is interesting, then, is that both the proponents and opponents of "activism" argue that it has. Oddly, they agree with each other on this point.

Yet, I think this is an open question. For example, has judicial activism advanced significantly the Canadian commitment to equality of citizens? Well, for those people who believe that we should actually vote on whether some people are equal or not, this might seem like the case. For those activists struggling through years of disappointment, this might seem like the case, but I wonder. Sometimes the opponents of judicial activism -- like the author of the book I'm reading - - talk about the far and fundamental changes. They use metaphors of depth and decisiveness. Yet, has Canada changed all that much for the average citizen? Frankly, my job has not changed. My family life has not changed. There is little different in my church on a day to day basis. My kids still go to the same soccer matches; my folks are still retired semi snowbirds.

What is more, most Canadians support equality. They don't feel that the government should discriminate against people because of their sexual orientation or that whom you find attractive should be a means test for a job. And, they have not felt this way, from what I can tell, for a good time. From what I can tell far from being "activist", the courts were slow and the government even slower to catch up to Canadian views. Might it not even be possible that one of the reasons for the court decision on equality was that there was a significant consensus on this issue already in place that the the lingering discriminatory nature of the law look ... well ... backward? Had not the private sector already begun to extend benefits to same sex couples. Indeed, is it not government -- and not the private sector -- that has been the bulwark of the opposition to equality for gay and lesbian Canadians?

I was going to look at another example but I think my point is already well laid out so I won't waste any more reading time. If one were a person suffering from backward discrimination, denied, say, the right to see a dying partner in this hospital, a court decision -- on a human level -- a deep and important change. Yet, aside from what are, in fact, a very limited (however important they are to the individuals involved) cases, how has the recognition that gay and lesbian Canadians are actually equal to straight Canadians changed your life on a day to day level? Has it changed your job? Made your papers easier to write for school? Helped you with the grocery shopping? Got you off a speeding ticket?

Maybe ... we have over-estimated the importance of the Charter as a matter of day to day life?

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