Andrew Coyne, not surprisingly, has the best take I’ve read on the anniversary of our Charter of Rights and Freedoms, and what the rule of law truly means:
That we have become a noticeably freer and fairer country in the 30 years since the Charter became law I do not dispute. But the changes it has wrought have as much to do with the system of law of which it is a part as with any particular provision of the Charter.
Indeed, the most common complaints about the Charter, that it has confined Parliament’s powers to make laws for the general good, while handing unelected judges the power to make law, are not only exaggerations: they could as well be said about the rule of law itself.
All laws, not just the Charter, bind the legislatures that pass them, at least until they are changed. All laws, not just the Charter, limit the discretion of governments. That is precisely their point. The purpose of law is not to restrain the citizens: governments can do that very well in its absence, as in any dictatorship. It is, rather, a restraint on government. We do not trust our leaders enough to permit them to rule by fiat. We make them put it in writing. We grant them this much power, and no more.
We insist their powers be defined in this way, not only to contain them within limits, but that we might better understand what they are — that they might be more predictable, more certain, more clear. We desire, at a minimum, that laws should mean the same thing from one day to the next, and be consistent with each other.
But for that we need an independent adjudicator. If the people who made the laws also had the power to interpret them — as kings have claimed, in ages past — the law would cease to perform its intended restraining role. Legislation would mean whatever was convenient in any given case. Only by dividing power between the legislative and judicial branches — one proposing, the other disposing — can we be protected, however imperfectly, from “arbitrary measures.”
All laws, then, not just the Charter, involve the judiciary in “making law.” The minute you given anyone the power to interpret the law, that inevitably impinges upon the legislative power to some degree, no matter how scrupulous they may be about original intent. That is an implication of the rule of law, not the Charter. (And not only written law: The common law that conservatives get all misty about is judge-made law in its purest form, consisting as it does entirely of jurisprudence).
Most criticism of the Charter has come from the right. But certainly not all of it:
The Charter of Rights and Freedoms, the 30th anniversary of which falls today, is changing Canada for the worse — its emphasis on individual rights may trump the broader public good and even open the door to Americanization of medicare, says one of its architects, Roy Romanow, the former NDP premier of Saskatchewan.
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.