2010 Karen Selick
An edited version of this article first appeared in the August 6, 2010 issue of The Lawyers Weekly.
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Charter Should Cover Major AND Minor Freedoms
Recent news stories have reported that the government of Iran was on the verge of adopting legislation prescribing a list of acceptable hairstyles for men. Ponytails and spikes, among other things, would be banned. The widespread ridicule that followed has apparently caused the Iranian government to pause for further consideration.
Nevertheless, Iranians have been subject to grooming codes and dress codes for decades. This summer, Iranian police have reportedly been cracking down and arresting women for such heinous offences as wearing too much lipstick or sporting suntans. Barber shops have been ordered by police not to pluck men’s eyebrows. And of course, there is the hijab, mandatory attire for women since 1979.
Do the people of Iran enjoy liberty? Most Canadians, upon hearing of these bizarre, intrusive 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 in section 7. Section 1 then warns that if the state wishes to limit that right, it must establish that its limitation is both reasonable and “demonstrably justified in a free and democratic society.”
Sounds straightforward enough. But something peculiar happened when this simple framework for safeguarding liberty started coming under the scrutiny of our courts. Mysteriously, the concept of “liberty” came to be eviscerated, with the courts chucking out many activities that the average person would probably expect liberty to include.
The trend started when the Charter was only three years old. In the reference Re B.C. Motor Vehicle Act,  2 S.C.R. 486, Justice Bertha Wilson wrote: “Indeed, all regulatory offences impose some restriction on liberty broadly construed.” So far so good. She got that part right.
But then, inexplicably, she went on: “I think it would trivialize the Charter to sweep all those offences into s.7 as violations of the right to liberty and security of the person even if they can be sustained under s. 1.”
A year later, in R. v. Edwards Books and Art Ltd.,  2 S.C.R. 713 Chief Justice Dickson picked up her train of thought: “In my opinion,” he wrote, “‘liberty’ in s. 7 of the Charter is not synonymous with unconstrained freedom.”
Well that’s an interesting opinion, but it happens to contradict every dictionary on the planet. “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 under section 1, 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 to do so, and smoking marijuana for recreational purposes in the privacy of one’s home.
Rather than making the decisions that section 1 requires of them as to when such activities can legitimately be restricted in a free society, 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 the Morgentaler decision of 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. Making medical decisions for your child failed by a single vote. 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, for example. While the decision to terminate a pregnancy might be monumentally important for some women, others seem to shrug it off with bored indifference. According to the Center for Disease Control, 26 percent of American women who get abortions have already experienced one previous abortion; 11 percent have had two; and 7.5 percent have had three or more.
Isn’t it conceivable that revoking a doctor’s licence to practice medicine is at least as earthshaking an issue to the doctor as forbidding those multiple pregnancy terminators to abort yet again? The test of fundamental personal importance is so obviously subjective and immeasurable that adopting it was wildly problematic 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 suntans? Obviously not, according to Canadian jurisprudence. Those aren’t “decisions of fundamental personal importance.”
But how ridiculous is that? 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 grand, important issues? How will we ever acquire the necessary wisdom and character for important decisions if we can’t practice on the small stuff?
And if the average citizen can’t be trusted to govern himself 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 the day before was deemed too stupid to determine his own hairstyle?
Perhaps it was inconceivable, back in the late 1980s, that anyone would ever try to legislate men’s ponytails or women’s suntans. Canadians had hitherto enjoyed such bountiful personal liberty that we took it for granted. A quarter century has stealthily changed all that. Regulations now encroach pervasively on every sphere of human activity. Many newcomers to Canada hail from places where it is taken for granted that the state will legislate hairstyles and suntans.
If we don’t want to end up with full-fledged authoritarianism ourselves, it’s time for the courts to re-think those late 80s 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.
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November 28, 2010