In a deeply subversive decision, the B.C. Supreme Court has ruled that our Charter of Rights governs only those interactions that take place between the state and its citizens. All our other dealings — with private corporations, charities, banks, restaurants — indeed, any non-governmental enterprise — are exempt.
According to this view of things, fundamental rights such as freedom of speech and religion, of assembly and association, are guaranteed merely when dealing with public officials. Otherwise, you’re on your own.
The case arose from a dispute between the University of Victoria’s Students’ Society and an anti-abortion group. The B.C. Civil Liberties Association took the Students’ Society to court, alleging it had infringed on free speech on campus.
While the judge appeared to agree that such an infringement had occurred, he dismissed the complaint. His reasoning?
The Supreme Court of Canada has previously ruled that the purpose of the Charter is merely to constrain how government agencies must act. Since the top court has also found that universities are not part of the public sector, they’re off the hook.
This is an astonishing dilution of our national bill of rights. The preamble to the Charter explicitly states that the freedoms it guarantees are subject only to such reasonable limits as can be justified in a free and democratic society.
Excluding 80 per cent of civil discourse from the Charter’s reach (that being the non-government share of the economy) would, I submit, constitute an unreasonable limit. Furthermore, the freedoms guaranteed in the Charter are worded in language of such breadth and finality as to render so narrow an interpretation risible.
Section 2 of the Charter reads as follows: “Everyone has the following freedoms …” It does not say, “Everyone interacting with a government agency has the following freedoms …” Where, then, is the basis for neutering our bill of rights?
The justification, such as it is, lies in Section 32 of the Charter, which names the federal government, the provinces and territories as the guarantors of our liberties.
That was unavoidable. Most of the constitution is taken up with defining the obligations, and authority, of Canada’s public sector. The authors wished to make sure there was no sneaking out when it came to matters such as protecting minority language rights, ensuring the rule of law, holding elections regularly and the like.
I suspect it never occurred to anyone they were letting four-fifths of the country off the hook. That would have contradicted the fundamental purpose of having a Charter.
Those who support this gutting of our title deed argue that human-rights tribunals can fill the gap. No, they cannot.
Their lack of due process, their weak standards of evidence and their history of pandering make them a pale shadow of the real thing. Too often they have been more interested in limiting free speech than in protecting it.
We were told the point of a Charter was to safeguard inalienable rights, not to hog-tie them.
When Pierre Trudeau first proposed a written constitution, premiers, including Saskatchewan’s Allan Blakeney and Alberta’s Peter Lougheed, were suspicious of the scheme. They foresaw a field of legal wrangling that would occupy the courts for generations.
In this, unfortunately, they have been proved right.
Nevertheless, their support was gained by the promise that a bill of rights was being entrenched at the summit of national life, which neither politicians nor lawyers could disturb. It is painfully obvious that this promise, at least for the moment, has been dishonoured.
Let us hope the civil liberties association will appeal this ruling. Surely, somewhere, a judge will be found who understands that fundamental freedoms extend beyond the narrow boundaries of officialdom.
