Legal prostitution. Assisted suicide. Decriminalized pot. Gay marriage.
Our society is undergoing a breathtaking transformation, hurried along by the influence of the Canadian Charter of Rights and Freedoms, the court that interprets it, and the massive new town square called “social media.” A lot of Canadians – among them many new Canadians – are ill at ease with these pending and legislated foundational changes.
Some complain of a coarsening of the culture. Others call it a long overdue breath of fresh air.
The Canada that many of us chose to live in – the nation that those of us over 50 knew and understood – is undergoing a rapid transformation of its character.
Enacted just 33 years ago, the provisions of the Charter of Rights and Freedoms have prompted our courts and legislatures to contemplate and modify areas thought to be taboo, and fatal to a political career, not that long ago. Their emphasis has tended to transform our society, bringing practices and behaviours once deemed immoral, or even criminal, into the open.
Unintended Consequences
Not everyone is entirely comfortable with the type of nation that is emerging. We tend to think of a charter or constitution as a document that cements in place the type of society that we are. However, the opposite seems to be the case. The Canada that many of us chose to live in – the nation that those of us over 50 knew and understood – is undergoing a rapid transformation of its character.
Some of it seems nonsensical and makes the head spin. One well-known Toronto lawyer said he was going to mount a Charter challenge for a dog owner’s right to keep a vicious pit-bull. A Charter right to own a dog? Seriously? Or we witness a dominatrix Madame being presented by her lawyer as a champion of all our liberties. No one said constitutional law was without humour, or was dignified even.
If the act of selling sexual services is deemed worthy of Charter protections, what limitations can we place on it? Can we legally prevent solicitation from becoming common and ubiquitous?
Then, there are the unintended consequences. If the act of selling sexual services is deemed worthy of Charter protections, what limitations can we place on it? Can we legally prevent solicitation from becoming common and ubiquitous? Can houses of sexual services be domiciled near houses of worship and schools? Will we somehow legislate such practices into red-light districts? If not, why? But let’s not kid ourselves, legal or not, prostitution will continue. It always has.
And what about marriage? It wasn’t so long ago that anyone dared to consider marriage as anything other than one man and one woman. Now that we have broken that barrier, will a Charter challenge eventually make bigamy and polygamy legal? Will there be an ongoing review of the institution of marriage leading to the inclusion of a number of variant social relations under the term marriage? And, if so, what impact will that have, if any?
Recently, I was a guest on a TV program to discuss assisted suicide, the legalization of which is now being contemplated by the Government of Quebec. My bottom-line take was that no one wants to witness a loved one suffering without end, but… Modern medicine may be able to prolong a fading life – but without a cure and without healing. That is a fate almost worse than death. But in a “post- religious” (I use that term reluctantly) world, suffering has no meaning. The prophet Job means nothing. The passion of the Christ is without import. Buddhism’s dukkha is pointless. Where suffering at the end of life has no meaning, people say: end the suffering, immediately. My concern is that once the door is open, how do we prevent someone suffering a lengthy period of emotional depression from seeking and obtaining an assisted suicide? Do we want that person to have access to an assisted suicide? Should we have any say at all? You see, Pandora, this is a Charter into uncharted territory.
A Multicultural Tool?
Section 2 of the Charter governs freedoms of conscience and religion; thought, belief, opinion and expression, including freedom of the press and other media of communication; peaceful assembly; and association. This is all well and fine.
Then the Charter moves on to defining our rights. Section 7 promises us life, liberty and security of the person. I have long wondered whether this can be interpreted to include rights so basic as: a right to not go hungry; a right to shelter; a right to education; a right to medical attention; a right to be clothed. You know… the basic necessities of life.
[Former B.C. Premier Ujjal Dosanjh] told me that when new Canadians woke up to it, they might realize that section 27 of the Charter opened a lot of possibilities for them and others.
But then there’s section 27, which may be the sleeping giant in our Charter. Back in 1994, I had a meeting with accomplished lawyer and former B.C. Premier Ujjal Dosanjh, then a NDP backbencher, in his Victoria legislature office. He told me that when new Canadians woke up to it, they might realize that section 27 of the Charter opened a lot of possibilities for them and others.
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
He told me that he believed section 27 was all about making a place in Canada for new Canadians. Possibly it does. That section owes something to our occidental heritage. In Western democracies it has fallen to the judicial branch of government to champion and defend the minority against the majority. That’s not new. It’s a principle first enunciated in Plato’s The Republic (Book VI, in case you are keeping score). It is indeed the job of the democratic society to protect its minorities. In section 27, that becomes not just simple preservation, but enhancement. What does that mean?
So while the pace of change brought on by the decriminalization of once-forbidden activities may be breathtaking and alien to some, it may turn out that it is section 27 that has the potential to re-shape the nation in which we live.
Richard M. Landau has been responsible for adjudicating disputes and enforcing a television network code of ethics in a religious broadcasting setting since 1992. He is a graduate of Carleton University and the University of Ottawa. A leader in interfaith dialogue, Landau has consulted with the U.K. Home Office, and the White House Office of Community- and Faith-Based Initiatives. He works closely with leadership in all of the major world religions. He is author of What the World Needs to Know about Interfaith Dialogue.
