The Charter was a huge mistake: Canada Did What? podcast

It’s lionized by politicians but, in the real world, Canada’s Charter of Rights and Freedoms has proved less a symbol of democratic liberty than an agent of destruction. Since becoming constitutional law, the Charter has run roughshod over Canadian democracy, weaponized in the courts to overturn popular and vital policies. In 1982, there were plenty of people on the left and the right who tried to warn us of the coming devastation before it happened. It ended up being worse than they imagined.

This is episode 4 of season 2 of Canada Did What?! For previous episodes and seasons please subscribe below.

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Canada Did What? Season 2, Episode 4 unedited transcript

Host, Tristin Hopper:  In Canada, there was a period of time when you had a constitutionally guaranteed right to do illicit drugs in a playground.

In 2023, the Province of B.C. had just decriminalized illicit drugs. And when that immediately yielded a bunch of open-air drug use, they sought to dial it back just a bit.

You could still legally shoot heroin and smoke meth almost everywhere, but not in playgrounds or splash parks.

A group called the Harm Reduction Nurses Association challenged the law in court as unconstitutional, and a judge agreed with them. The judge reasoned it this way: If you told a drug addict that they weren’t allowed to shoot heroin in a playground, that addict might instead do their drugs somewhere more private, like an alleyway or a bathroom stall. And if they happened to overdose, nobody would be able to see them and call an ambulance.

Thus, the judge ruled, the policy put lives at risk and violated B.C. drug addicts’ constitutional right to “life, liberty and security of the person.” The law was slapped with a three-month injunction, and the playground drug use continued.

And you know something? This happens all the time. Some judge finds a new constitutional right that just seems baffling to your average normal person, and we all have to live with it.

In 2025, an Ontario court ruled that Canadians had a constitutional right to bike lanes. The provincial government had been looking to remove some bike lanes in Toronto, when a judge blocked them on the grounds that it would endanger cyclists – and thus violate the cyclists’ constitutional right to “life, liberty and security of the person.”

That same year, another Ontario court ordered the province’s health insurance plan to pay for an experimental surgery that gave the patient an artificial vagina while maintaining their penis. Why? The patient only felt like their true self in a body equipped with both a penis and vagina, and denying them that was a violation of their constitutional right to “life, liberty and security of the person.”

It is the contention of this podcast episode that all of this madness, and a whole bunch of other madness I haven’t even mentioned yet, can all be traced back to a single moment in Canadian history.

It’s this one.

(News clip of signing of the Canadian Charter of Rights and Freedoms 1982.)

That’s Queen Elizabeth II in 1982 personally signing the royal proclamation of the 1982 Constitution Act.

Ever since that moment we’ve all been subject to the Constitution’s embedded Charter of Rights and Freedoms. We apparently love it so much that there’s an excerpt of it printed on the 2018 redesign of the Canadian 10-dollar bill and it receives almost daily praise in the House of Commons from members of every party.

Here’s Conservative MP Brad Redekopp last June: “Freedom of religion and belief are fundamental rights in Canada, protected by the Charter of Rights and Freedoms.” Here’s another Conservative, Larry Brock, in October. “I absolutely believe in democracy. I absolutely believe in the Canadian Charter of Rights and Freedoms.”

According to the Department of Justice’s official website, the Charter is, quote, “one of our country’s greatest accomplishments.” In a 2019 poll, Canadians ranked it number four in the list of things that made them proudest to be Canadian, behind only Universal health care, the Canadian passport, and the Canadian flag.

So what if I told you that the Charter kind of sucks, it has likely made the country worse in almost every way, and there were plenty of people back in the early 1980s who predicted exactly all the terrible problems it would cause, only for nobody to listen to them?

I’m Tristin Hopper and this is Canada Did What?! Today’s episode may go down as one of our most controversial — because in it we’ll be delving into how the patriation of Canada’s constitution, which was supposed to be one of our finest hours as a nation, was a terrible idea that ruined everything and we should never have done it.

First, some constitutional basics. The Constitution of Canada is a little different than, say, the Constitution of the United States. And this is going to be a theme of this podcast. We often think our system is American when it isn’t.

The Americans just have the one piece of paper; the Constitution of the United States, ratified in 1789.

Canada’s constitution is a whole bunch of different stuff stapled together, some of which is newer, like the Charter, and some of it is even older than the U.S. constitution.

In 1763, King George III issued a proclamation saying if that if you took Aboriginal lands without permission, he would be very upset about that. That proclamation is one of the pieces still in the constitution. So is the British North America Act; that’s the 1867 British Act of Parliament that created Canada as an autonomous dominion. It’s part of the constitution too.

Also in the Constitution is the Statute of Westminster. That’s the 1931 document which established that Canada is a completely independent country on equal footing with the United Kingdom. Before then, the British could still kind of tell us what to do.

So when people refer to the Charter of Rights and Freedoms, they’re not referring to a foundational document in the same way that an American would refer to, say, the First Amendment.

They’re referring to 2,600 words of text pasted into a ring-binder full of documents that, bundled together, form the constitution of Canada.

The Charter is the part of the constitution you hear cited most often because it’s the one with the most flowery language. The rest of the constitution is all boring procedural guidelines about ferry subsidies and railway land cessions, but the Charter is the one filled with declarations like “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law.”

And those 2,600 flowery words have caused a whole heap of unintended consequences.

In fact, if you are an average Canadian living in the 21 st  century, you are probably going to see something today, in your daily life, which is a direct result of the Charter of Rights and Freedoms. And chances are 50/50 it won’t be something you like.

You know how there’s tent cities everywhere now? There’s now  a Charter right for those  to exist. In multiple cases, provincial court judges have blocked efforts to clear out tent encampments on public land, ruling that it jeopardizes the camper’s rights to “life, liberty and security of the person.”

If you live in a mid-sized Canadian city or larger, you’ve probably got a few safe injection sites around. That  all started  with a 2011 Supreme Court decision finding that drug users had a Charter right to supervised drug consumption.

And it’s not just the controversial stuff. When you look at any major Canadian policy change of the last 40 years – so, my lifetime, basically – it’s almost never brought into being through democratic means.

We no longer use referendum votes or pressure campaigns or acts of parliament to change policy. We do it because a judge somewhere held up the Charter of Rights and Freedoms and told us to do it.

That’s the case with abortion. We did a  whole episode in the first season of this podcast about this , so if you haven’t heard it yet, you should go back and listen to it. Canada is the only country on earth without any laws whatsoever governing abortion because the Supreme Court struck them all down in 1987. The court said abortion laws violated the Charter right to — you guessed it — “life, liberty and security of the person.”

We have the world’s most liberalized regime of doctor-assisted suicide because the courts told us we had to. This one’s a little confusing, but the Supreme Court ruled in 2015 that not allowing people to kill themselves violated their charter right to “life.”

And when Ottawa tried to put limits on who could obtain assisted suicide — such as limiting it to terminally ill adults – the courts struck that down too.

Prostitution was partially decriminalized in 2014, on the grounds that it was more dangerous for prostitutes to sell sex when it was illegal. Thus, their rights to “life, liberty and security of the person” were being violated.

Same-sex marriage became enshrined in Canada following Parliament’s passage of the 2005 Civil Marriage Act, but politicians were effectively just putting a bow on something that had already been ordered by the courts.

At the time, most Canadians who were gay could already become legally married thanks to a bunch of provincial court decisions mandating same-sex marriage under the Charter protection right to “equal benefit of the law without discrimination.”

It’s a similar deal with legal marijuana. The government of Justin Trudeau brought in the laws that legalized recreational pot outright, but it was already de facto legal across much of the country thanks to a Charter decision.

In the year 2000, the Supreme Court ruled that you could possess marijuana so long as you had a medical reason for it, as doing otherwise would imperil the right to “life, liberty and security of the person.”

You probably agree with gay marriage, liberalized abortion, legal marijuana and assisted suicide: Most Canadians do. But at a certain point what you have to wonder what our elected government actually does anymore, because it seems like everything’s just being decided by the courts. And they’re using the Charter to do it.

As this podcast script was being written, the House of Commons was busy debating Bill C-2, a new immigration law that would extend automatic citizenship to tens of thousands of people who have never even lived here. All you need is a Canadian parent who’s lived here for at least three years and, boom, you’ll qualify for a Canadian passport.

Now why would they do something like that? Because of course a court told them to. In 2023, an Ontario court ruled that not granting automatic citizenship to non-resident foreigners with Canadian parents violated the charter right to “equality under the law.”

All the while, many of the laws that parliaments  are  passing keep getting struck down. The laws being decided by representatives that voters elect to enact the will of the people — you know, as in  democracy — are being routinely kiboshed by the courts. Why? Because of the charter, of course.

For example: The Criminal Code includes a law that if you’re convicted of child luring, you’ve got to go to jail for at least a year.

Not allowed! The Supreme Court struck that down in 2023, deeming it a violation of the Charter protection against “cruel and unusual punishment.”

More recently they did the same for the minimum sentence of one year for child pornography that pretty much every politician across Canada believes should be the law — from NDP premier Wab Kinew in Manitoba, to Liberals in Ottawa, to Conservative premiers like Doug Ford in Ontario and Danielle Smith in Alberta. Too bad.

Not allowed! In late 2025, the Supreme Court decided that was a charter violation too.

Another example: After being convicted for randomly shooting at a house, a guy in Alberta was given the requisite minimum sentence of four years in jail for reckless discharge of a firearm. Whoops, that’s “cruel and unusual punishment” too: Struck down.

We’re not even allowed to give life in prison to mass-murderers anymore.

In 2011, an  Act of Parliament decreed  that, henceforth, if you killed multiple people, your sentence would be based on how many lives you’d taken. Previously, the rule was that no matter how many people you killed, the maximum sentence you could receive was 25 years in prison before you could apply for parole.

Victims’ rights advocates had been lobbying for this change for decades – and both Liberal and Conservative governments had taken up the cause.

Often dubbed the “life means life” movement, it was full of people who had lost family members in mass-killings, including former NHL goalie Don Edwards, who saw both of his parents brutally murdered and his sister raped and nearly murdered by a man who was then let out on parole after serving 27 years.

Edwards and others had devoted themselves to a years-long project of ensuring that the families of future mass-murder victims would at least have the comfort of knowing the killer would die in jail.

Too bad. Within 10 years after Parliament passed the law, the Supreme Court struck it down. It was, you guessed it, “cruel and unusual punishment.”

It may not surprise you to learn that this is not how the Charter of Rights and Freedoms was sold to Canadians. If the pitch had been “hey everybody, let’s turn the Supreme Court into an unaccountable super-parliament that invents wild new rights every few months,” we probably wouldn’t have done it.

Pierre Trudeau –  a frequent character on this podcast  – was the prime minister who ushered in the Charter in 1982.

He’d been pushing for such a charter since he first became prime minister in 1968, but he really leaned into the effort after 1980, when Quebec held an unsuccessful referendum to secede from Canada.

Canada had dodged the Quebec separation bullet, and Trudeau became convinced that if the country was to survive, it needed the Charter as the one final seal on its constitution.

He said this pretty openly to opponents of the plan: Support my charter, or Canada deserves to die. Here’s a quote from his memoirs: “If there was not the will in the country to be constitutionally independent 115 years after Canada stopped being a colony, that would have meant there was no national will at all, and therefore no country worthy of the name.”

Media reports at the time frequently made clear that this was all very much a Trudeau passion project. The Charter was “Trudeau’s dream,” “Trudeau’s baby,” “Trudeau’s legacy project.”

And now let’s bring in our guest, Geoffrey Sigalet. He’s a professor at the University of British Columbia, specializing in Charter politics. And he’s the kind of Charter scholar when you do a podcast about how the Charter kind of sucks.

Guest, Geoffrey Sigalet:  Trudeau has been proposing the charter since 1960. So he wrote a paper in 1960 as a member of the Pearson government and saying that we need it, this white paper calling for a Canadian charter. And in that initial plan, there’s nothing about notwithstanding clauses, there’s nothing about limitations clauses. It’s his vision of like, he is this kind of Americanizing vision that will have this national bill of rights. And his view is sort of that that will be a unifying instrument, like this unifying thing that will help combat and help be part of what unifies Canada in the wake of the Quiet Revolution, the rise of Quebec Quad nationalism, and the increasing kind of, it’ll help solve the identity crisis that Canada has as it grows up, as it starts to grow into this period where it becomes a little more distant from Britain, but still not American, right?

There’s not like all kinds of Canadians clamoring for this. It’s not this priority for everybody. It’s an idea Trudeau has that he’s trying to foist into a wider project of renegotiating the Constitution.

Hopper:  As for why he was doing this, Trudeau would later say it was “an expression of my long-held view that the subject of law must be the individual human being. Therefore, the individual has certain rights that cannot be taken away by government.”

He’d been a law professor before becoming a politician and, quite simply, he trusted law professors to decide the boundaries of government control more than he trusted politicians.

We all know the type: The student government try-hard who loves “UN declarations” or “position statements” or “national strategies.” So this was the ultimate version of that: A giant, declarative national position statement setting down once and for all what was good, and what was not.

Trudeau would even frame it as a holy thing. In the House of Commons Trudeau justified the Charter by quoting the encyclical letters of Pope John XXIII, who headed the church from 1958 to 1963.

He noted how the pope had declared that in the organization of a modern state, “the first requisite is that a charter of fundamental human rights be drawn up in clear and precise terms and that it be incorporated in its entirety in the Constitution.”

Even today, when contemporary politicians talk about the Charter of Rights and Freedoms, they sometimes cite it as some kind of hinge point that came after decades of oppressive, illiberal darkness. As if Canada was a benighted hellhole of tyranny and persecution right up until April 17, 1982.

Serge Joyal was a Liberal MP in the early 1980s. Here’s what he wrote to mark the Charter’s 35 th birthday: “In 1982, Canada ushered in a new era”  he wrote , adding that the document had created a “new country” with “equal rights and the guarantee of freedoms.”

But you were alive in the years prior to 1982, you may remember that you lived in a free country with civil rights. Lots of them, in fact.

Sigalet:  Well, the world of rights prior to the charter is pretty interesting, right? Because it’s a world where the primary way of protecting rights was actually through the legislature, through the legislature’s ability to enact laws that took different views on different kinds of rights questions and used the power of the state to protect people.

the primary way when rights are protected is through the legislature, through democratically accountable elections that become more democratic as the franchise is extended over Canadian history.

Hopper:  Before the Charter came along, Canada had extended the vote to women, it had brought in full citizenship for Indigenous people, it had enshrined socialized medicine, it had ended institutionalized racial discrimination, it had liberalized gay rights, it had brought an end capital punishment.

All of this had happened without the charter and without a court ever getting involved. All those social changes had been obtained via the old-fashioned way of having Parliament pass laws with the support of the people.

Sigalet:  I would say that the enactment of laws ending discrimination, provincial bills of rights preventing discrimination came, legislatures using their legislative power to protect different kinds of rights in the Provincial Human Rights Act, that precedes the Charter.

Think about the amazing thing of voting rights, the story of the voting rights is that the voting rights expand and are granted. The universal franchise is mostly established by the time the charter comes in. In fact, it is established, the universal adult franchise.

But you have a universal franchise for people living in Canada who are Canadian citizens and are adults and haven’t committed crimes. And I mean, I think that’s a huge historical victory. that is the legislature itself, legislatures themselves that were not elected on the universal franchise, expanding rights protection to new, enfranchise new populations, new groups, right? Including indigenous peoples, including women, right?

Hopper:  Courts were places where you prosecuted burglars or litigated a shipping contract. As Supreme Court Chief Justice Beverly McLachlin would put it, in the pre-Charter era “most people passed their lives without going near the courts or perceiving themselves as affected by them in any way.”

But with the Charter, Canada was very explicitly signing on to an American view of how the law works.

Instead of relying on tradition, precedent and the wisdom of the electorate to define the rights and freedoms of your people, you trust everything to judges. Pass whatever law you want, but if these guys over here in robes say it’s unconstitutional, it gets shredded.

It was a shift from parliamentary supremacy to judicial supremacy.

And when you look at the people who opposed the Charter at the time, that’s at the essence of their argument.

In 1969, when Trudeau had first begun shopping around the idea of a charter of rights, the constitutional theorist Donald Smiley delivered a famous speech to the Canadian Political Science Association laying out why he thought it was a horrible idea.

For one thing, he predicted, if you turn all the country’s judges into high priests of human rights, they’re eventually just going to start guessing what people want them to do.

So you’d be making them into politicians, essentially – except they’d be way more powerful, completely unaccountable, you can’t fire them, and they would be devoid of any of the instincts and feedback mechanisms enjoyed by actual politicians.

As Smiley put it “I remain unconvinced that the Canadian courts are a sufficient repository of superior wisdom and statesmanship to entrust with the new functions.”

The actual process by which the Charter was brought into being in the early 1980s is far too boring to detail in a podcast that we attempt to ensure is somewhat entertaining. And that was true at the time too; the average Canadian really could not get excited about this thing.

But the cursory summary is this:

Provincial premiers were extremely skeptical of the idea right from the beginning, mostly because they saw it as a federal incursion on their power … something on which they’d end up being 100 per cent correct, by the way.

That’s particularly true in Quebec. Separatist premier Rene Levesque had just lost the 1980 secession referendum, so it’s safe to say he’s not a fan of the Canadian federal government. And now the prime minister comes knocking with a proposal to place the entire workings of the Quebec governments under the veto of federal judges.

If Quebec, say, wants to impose some strict language laws – and they love those – a judge could just smack it down as a violation of Trudeau’s charter.

The other provinces weren’t huge fans of Quebec at this point, but on this point they did agree. Whatever form a “repatriated constitution” took – and that’s what Trudeau kept calling it, even though nobody knew was “repatriated” meant – it was almost certainly going to enshrine more power with Ottawa at the expense of the provinces.

Sigalet:  When the negotiations start, Ontario and New Brunswick are both in favour of the Trudeau plan.

And basically the rest of the provinces aren’t. And in particular, Sterling Lyon is wildly against the whole idea, the premier Manitoba then. Peter Lougheed is skeptical, Alan Blakeney is skeptical, Bill Bennett in British Columbia is skeptical. The other premiers are not as interested in this idea, in this project.

And one of the reasons they’re skeptical is that they know what charter of rights means that federally appointed courts might get to strike down their laws under this new bill of rights that they’re negotiating that can be very abstract.

Hopper:  Trudeau’s initial response to all this skepticism was … “up yours.” He appears on television in October 1980 and tells the Canadian people that he’s just to impose this charter on his own without provincial consent.

What followed was a wave of lawsuits and counter-lawsuits: The Manitoba Court of Appeal says Trudeau can act unilaterally. The Newfoundland Court of Appeal says he can’t. The Quebec Court of Appeal says he can. The Supreme Court says he can … but that he’s sort of being a jerk by doing it. He was “violating convention,” as they said.

Also, some native leaders went to England to tell Margaret Thatcher and the Queen to kill the whole thing.

Eventually, once the lawsuit dust had settled, the premiers start meeting with Trudeau again, and most of the wrangling then shifts to what should  be  in the document: Which rights get guaranteed, which groups get special protections.

But every once in a while you also had voices that, like Smiley, hinted that this whole thing might still be kind of unworkable and dumb.

At the height of the Charter debate, the historian G.P. Browne argued that it was one thing for American judges to serve as all-powerful constitutional arbiters, but quite another to expect it from Canadian judges.

U.S. Supreme Court judges were household names who each needed to run a very public political gauntlet of Senate confirmation hearings to take their seat. And at the lower court level, many American judges were elected by voters.

But Canada was going to put its entire political system in the hands of some unknown jurists unilaterally appointed by the prime ministers, who couldn’t be fired and who had zero experience whatsoever in what Browne called the “alien practice” of deciding whether a law violated “fundamental freedoms” or whatever.

Sterling Lyon, the Progressive Conservative premier of Manitoba at the time, was so against the idea of judicial supremacy that he  didn’t even like the American Bill of Rights .

Said Lyon, “we didn’t need a Charter in our system, and we’ve seen the disastrous effects of the courts becoming final arbiters of social, and to some extents even economic, and certainly political matters in the United States.”

Next door in Saskatchewan, you had an NDP Premier, Alan Blakeney. And he hated the Charter because he was an old-timey socialist who distrusted the elite. And there’s few things more elite than a judge.

Sigalet:  So the generation of premiers negotiating with Trudeau come from different political backgrounds, but it’s interesting because there’s conservatives who have their own reasons for being skeptical about courts getting involved in this, and there’s socialists, democratic socialists like Alan Blakeney, who are skeptical from this left tradition.

Hopper:  Here’s Blakeney  in an interview  given after his retirement: “I think I can say that you become a part of the elite of the legal profession by being a handmaiden of the business establishment,” he said, adding “so judges are members of the legal elite, and therefore handmaidens of the business establishment, who are then appointed by the same politicians we are supposed to be suspicious of.”

Sigalet: you’re just skeptical about courts and lawyers as this avenue of progressive change. Because you know that lawyers tend to be upper bourgeois, middle class, upper middle class, maybe upper class folks who are in bed with capital and have stock portfolios and they’re not your friends necessarily, right? And also you know that special interests in big business can use courts to…pick off and get victories against the more popular, in some cases, demands of labor, right? And so you are not a fan of judicial power as being reliably in favor of progressive interests.

Blakely does a good job of summarizing this point of view in his writings where he says, look, there’s rights outside of the charter. And I don’t trust courts to interpret the rights in the charter in ways that are respectful of the end and balanced with the rights that progressives care about outside of the charter, right?

Hopper:  Now what did your average Canadian think about all this? Despite all the praises now being sung to the Charter, the Canadians of the early 1980s didn’t really care that much about this legislation that was about convulse Canadian society like a hurricane ripping through a trailer park.

Polls had always showed that Canadians backed the idea of a rights charter in principle, but that’s about as far as they’d considered it. And that was before the this whole project of Trudeau’s had become an unending ordeal that utterly dominated federal politics to the exclusion of everything else.

Tellingly, at the precise moment that the Charter was being signed into law by the Queen – a moment generally acknowledged at the high water mark of Trudeau’s political career – his approval rating plummeted to an all-time low of 28 per cent.

That approval rating probably would have looked a lot different among Canada’s various activist lawyers, who began drafting up Charter challenges almost as soon as the Queen’s signature was dry. And they haven’t stopped since.

Here’s how one Canadian Press story greeted Canada’s new Charter. “History was made Wednesday. So was a potential bonanza for lawyers.”

Sigalet:  The reality is too that there’s a change in legal culture, that the law schools respond to the fact that the courts have this new bigger policy making role under the charter. And the law schools start to hire people who are writing and hiring from American law schools have a longer tradition of this of writing pieces advocating for social change using the charter in various kinds, right? So they use it to kind of engineer some of their social policy goals. And it’s not a coincidence that some of the people who become appointed to the court have been in legal academy or been trained by people in legal academy saying use the Charter as this mechanism for social change in such and such a radical way.

Hopper:  Beverly McLachlin was Canada’s longest-serving Supreme Court justice, the longest-serving chief justice for 17 years, and she authored many of the decisions mentioned in this podcast episode.

In a 1990 speech, McLachlin said rather openly that Canada better get used to judicial activism, because there was going to be a whole lot more of it.

In a post-Charter world – and that’s what she called it – courts could now decide the legality of a whole range of things: Controversial social issues, deep moral questions, small petty things like whether shopping should be allowed on Sunday.

Up to that point, whenever Canadian courts had been faced with some controversial unresolved issue like abortion or euthanasia, the answer was almost always “that’s not our department, bring it up with a parliament.”

But McLachlin said it was now the job of the unelected courts to decide all these things. There wouldn’t be any more controversial, unresolved issues, because judges would provide answers for them all.

“The courts have no choice but to grapple with a whole range of hitherto unlitigable issues, many of them involving social and moral questions of profound importance and difficulty,” she said.

And she also said this might change from year to year. There were no more foundational legal principles in Canada. The Charter, she said, “defies the possibility of absolute and permanent interpretational certainty.”

McLachlin very much set the tone for her colleagues.

Sigalet:  The reality is too that there’s a change in legal culture, that the law schools respond to the fact that the courts have this new bigger policy making role under the charter. And the law schools start to hire people who are writing and hiring from American law schools have a longer tradition of this of writing pieces advocating for social change using the charter in various kinds, right? So they use it to kind of engineer some of their social policy goals. And it’s not a coincidence that some of the people who become appointed to the court have been in legal academy or been trained by people in legal academy, saying use the charter as this mechanism for social change in such and such a radical way.

Hopper: In 2012, Justice Jean-Louis Beaudoin said he saw his job not so much as interpreting the law, but in finding “solutions to extremely complex matters … because our society is constantly evolving.”

Or you can look at a very telling section of a 2015 Supreme Court decision that gave Canadians a constitutional right to strike. This question had actually come up before the Supreme Court before, in 1987, and they’d concluded “no, there’s no charter right to strike.”

But then, 18 years later, the Court changes it mind and decides actually, if you look really closely at the charter right to “freedom of association” it also covers strikes.

And if that seemed like a bit of a stretch, well, according to Justice Rosalie Abella, who wrote the decision, that was just too bad for you.

The time had come, she wrote, to give “constitutional benediction” to the notion. She had decided it, and so it became law. And not just regular law — constitutional law that could not be repealed by any government.

Sigalet: But I think it is a mistake to think of judicial power as just being not linked from other political forces at all, this sort of sui generis out of nowhere, the courts have gone crazy and they’re just doing all this stuff, right?

The courts are reacting and they’re always, making decisions in relationship to the inaction or action of other political actors. And so that’s something to really keep your mind on in terms of keep your keep in mind as we think about the big picture of how judicial power has changed in Canada.

And one thing I think you can see is that when the court is majority appointed by one party and then that party is in charge, then the court is much more licensed, I think, to take crazier cases, take cases where it’s striking down laws, often even laws enacted by the other side’s parliament, and maybe doing more controversial stuff, I think.

And that is partly that there’s this licensing effect, or at least a non-curbing effect, where they don’t have to fear that parliament getting mad at them or taking them down, because that parliament will be, and the prime minister may be perfectly happy to have the court doing his dirty work on some of these files that he doesn’t want to take.

Would pro-choice forces have rather had to enact and debate laws further liberalizing Canadian abortion law during the time that Morgenthaler was decided? They wouldn’t, right? They wouldn’t want to face that headache because both parties featured pro-life and pro-choice wings and they were very cross-pressured, right? There was lots of internal fighting about these things.

So it was a nightmare for any other party to bring forward legislation more restrictive or less restrictive legislation about that stuff because there were so many people disagreeing in it. So it suited political actors very much to have this settled outside the courts, if it could be, right?

Hopper:  So, to recap — in the early 1980s Canada had a wrenching national debate about how it was going to distill the essence of this country into a single document: One eternal Charter to rule them all.

Politicians spent weeks debating minutiae like whether to include a reference to God, whether to include a provision stating that rights applied equally to men and women. and whether it was necessary to include specific protections for groups ranging from handicapped people to Acadians to treaty First Nations.

And then, after all this robust, healthy and democratic political debate – they handed it all over to unelected, unaccountable judges who declared it to be merely a vague set of instructions that ultimately gave them the power to decide whatever they wanted at any time … so long as they could convince themselves it was for the greater good.

Going back to that speech that the supreme court’s Beverly McLachlin gave in 1990. In it, she actually acknowledged that judges probably weren’t the best people to be arbiters of what is moral or just. Judges, particularly those in the 1990s, were people “raised on the arid objectivity of contracts and bills of lading” and “accustomed to looking to precedent for the answers.”

So McLachlin advised her fellow judges that when they faced with a controversial moral quandary, they should just do whatever they assume everyone else would want them to do.

This is a direct quote: “The best solution, it seems to me, lies in seeking the dominant views being expressed in society at large on the question in issue.”

So, read the paper. Watch TV. Find out quote “what has been written and said on the point in question.” This is how you get judges like Abella declaring it’s “time” to make the right to strike a Charter right. Or a Supreme Court changing its mind and saying assisted suicide was a right in 2015 after ruling in 1993 that it was not a right.

What McLachlin failed to acknowledge in her speech is that we already had a way to figure out the “dominant views” of the populace: A giant room in Ottawa filled with more than 300 people selected from across the country in general elections employing universal suffrage.

Judges are drawn from a narrow demographic pool of people from a single career path with relatively similar life experiences, so even the most brilliant and well-meaning judge is never going to have their finger on the pulse of public opinion quite like a Parliament.

Actually, it’s often the exact opposite.

Here’s an example from that decision I mentioned where the Supreme Court decided that it was “cruel and unusual punishment” to put mass-murderers in jail for life.

The decision concerned Alexandre Bissonnette, a white supremacist who opened fire during evening prayers at a Quebec City mosque, murdering six people.

He’d originally been sentenced to 150 years in jail, but as mentioned, the court bumped this down to 25 years.

It’s probably one of the most controversial Supreme Court decisions of the last decade. And, incredibly, the court writes that they had to do it in order to maintain Canadians’ faith in their justice system.

Handing out a 150-year sentence to a mass-murderer “brought the administration of justice into disrepute and undermined public confidence in the rationality and fairness of the criminal justice system.”

On that point they were correct. The Canadian public did indeed think a jail sentence for Bissonnette undermined the fairness of the justice system. According to a poll conducted around that time, a majority of Canadians actually supported executing murderers .

Sigalet: The kind of bottom line lesson is that judicial review is not the courts, it’s not the lawyers coming in and taking everything over without any kind of other political dynamic. It’s that they get power over some of these questions because people want them to have power over it, including the people, and people can become less accountable for different kinds of questions if courts and lawyers are the ones in charge of them, right? But that ultimately empowers the legal class. Empowers, they talk about minorities all the time, but what’s interesting to me, I always like to point this out to lawyers, I give talks at law schools is that the charter ultimately is empowering a minority and it’s empowering a minority that’s a guild across the country and it’s a fairly elite guild and the guild is lawyers. Lawyers’ views about all kinds of public policy questions are privileged now because they get to be the ones debating and interpreting these relatively open-ended provisions.

Hopper:  In U.S. discourse, you often hear reference to what the framers of their own Constitution would think about the state of their handiwork in the 21 st  century. Things like “Sure, George Washington supported Second Amendment gun rights in the age of the musket, but what about an AR-15?”

Well, the neat thing about Canada’s Charter of Rights and Freedoms is that several of its framers lived long enough to state that all their worst fears about the document had been confirmed.

Sterling Lyon died in 2010. At that time, the most outrageous Charter decision was one that had mandated that voting rights be extended to criminals serving time in prison.

Said Lyon a few years before his death, “if anyone had said to us in 1981 that the Charter would be used to win voting rights for prison inmates, we never would have believed it.”

In 2001, former Alberta Premier Peter Lougheed gave an interview in which he reiterated that his chief concern with the Charter had been that it would enable “courts (to) take the place of elected parliamentarians.”

The aging Lougheed  then added , “my God, that’s what happened.”

Sigalet:  If you showed them some of the decisions made under the charter, it would have made the charter very politically controversial with the electorate and even with some of the advocates, right? Like Trudeau and Chretien might have been like, okay, well, we don’t want that. And we don’t want that. And that partly for political reasons, maybe that now with the cat was out that everyone can see in the future and see what would happen if we did do this and that.

So if you could go back and tell them, well, the charter means bike lane rights and the charter means abortion rights and stuff like that. Well, they would say, well, no, you know, your moderate Liberal voter would who’s a grandma now or a great grandma would say absolutely over my dead body. You know, like, I don’t want that.

Hopper:  And here’s Blakeney the socialist from Saskatchewan in 2005: Right now, the conventional wisdom is that our splendid parliamentary system, with a wise electorate, somehow elects only fools and knaves. Fools and knaves who appoint judges who are wise. … somehow the judges …. are invested with superhuman wisdom. But these things come in waves. The day will come when the public will want more decision-making power back.”

We may be getting there soon. Because there’s a very special section of the Charter of Rights and Freedoms that I haven’t mentioned until now.

An escape valve. An ejection seat. A big red button to say “please stop the judicial supremacy I want to get off.” And it’s becoming more and more popular — so much so that the federal government is trying to stop people from using it.

I refer of course, to the Notwithstanding Clause. Section 33 of the Charter of Rights of Freedoms. The whole thing is a bit wordy, but it states that any government can just refuse to observe the Charter of Rights and Freedoms if they want to. Not all of it, but the main stuff: Freedom of association, security of the person, freedom of religion.

If a court finds that your law violates a Charter right, you just invoke the Notwithstanding Clause and pass it again. And increasingly provinces are just invoking it to begin with to head off the court challenge process altogether.

Quebec has done it more than a dozen times, including a particularly passive aggressive bill passed just after the Charter’s introduction which declared that every bill they passed would be invoking the Notwithstanding Clause for everything. They’re not quite so extreme anymore, but Quebec did famously use it for their secularism law banning some public servants from wearing religious attire. Alberta did it in 2025 to end a teacher’s strike. Saskatchewan used in 2023 for laws restricting gender transitioning in minors.

And it is primarily thanks to the efforts of the guys I just mentioned: Lougheed and Lyon, with an assist from Saskatchewan Premier Allan Blakeney.

They didn’t like Trudeau and they didn’t like the Charter, but at a November 1981 premier’s conference in Ottawa they did manage to slip in a “parliamentary override.”

(Every at that conference, by the way, was dressed hilariously. It’s important to state that the designers of the Charter of Rights and Freedoms were often dressed ridiculously. Wide ties, polka dots, pinstripes, polyester.)

Sigalet: So there’s different stories about its exact origin, but it was there are notwithstanding clauses in the provincial bills of rights and the Alberta provincial Bill of Rights has a notwithstanding clause in it. And when Lockheed was negotiating about the charter, apparently it came up even in one of the earlier premieres, first ministers meetings where the premieres are meeting with Trudeau to negotiate this stuff. The idea of a notwithstanding clause as a potential way to make the charter more palatable to the provinces was floated and Trudeau’s not favourable to that. He didn’t want the notwithstanding close.

Lougheed claims to be the first one to bring it up. Blakeney also claims to be the first one to bring it up, I think. And Levesque at some point even talks about it, not with standing clause in the negotiations. And I think I date back Lockheed’s the farthest and I have, there’s some more evidence for that than I found with the others, but a really true professional historian should look, legal historian should look into that to really properly figure that out.

But the idea of a notwithstanding clause of the ability of the legislatures to say that notwithstanding what the courts have ruled on this issue, our law is valid. That idea was percolating around in some of the premier’s minds as a potential way to make a charter more palatable.

Hopper:  This is the one thing about the Charter of Rights and Freedoms that very explicitly is not American. In the USA, they don’t have a Notwithstanding Clause. If you’re a governor who decides to just ignore the U.S. Constitution, you’ll soon find armed, uniformed national troops marching into your state to force you to listen to it – that’s happened quite a few times.

Sigalet: We read American news, so we think, the charter must be like that. It must be like our version of this. And our system must function like the American one, because Canadians don’t know about their own Westminster tradition, right? And the pre-1982 tradition.

There’s also this… so it’s ironic, right? Because you have these people who are saying it’s so American to use the notwithstanding clause. And it’s like, there’s no notwithstanding clause in the United States. Like, what are you talking about? Like, there’s nothing more Canadian than the notwithstanding clause.

Hopper:  The notwithstanding clause was the last stand of the Parliamentary supremacists. But, as has been a theme of this podcast, there’s only so much you can do with written laws. Because, ultimately, you do need people to interpret and enforce them.

It’s kind of surreal to go over Parliamentary transcripts from 1981 where you have page after page of people arguing about the precise wording of this clause, or that subsection. Here in 2025, you almost want to go back in time and tell them “don’t waste your breath. it doesn’t really matter. Whatever you put in this thing, some judge in 40 years is going to find some way to have it justify a Charter right to bike lanes and tent encampments.”

So yeah sure, the notwithstanding clause is an escape valve out of all of this. But you need people to actually use the escape valve. And then you have to assume that a court system that’s had a solid 40-year run of making up Charter rights won’t just make up some reason the escape valve itself is also unconstitutional.

Case in point: In 2025, the Liberal government asked the Supreme Court to decide if there should be limits on when the notwithstanding clause should be used. In other words, “hello activist court, should provinces be allowed to say no to your constant activist decisions?”

And that’s perhaps the moral of the Charter saga — that it so seldom considered the human element. It was the creation of a culture that seemed to believe you could inscribe high-minded principles on a sheet of paper signed by the Queen, and they would just magically filter down into law without being influenced at any point by ego, ignorance, bias, arrogance, corruption or fear.

Sigalet:  I think the idea that there’s even the idea that the, that the charter is used to, the most shocking things would be hearing anything like the case is like, there’s now a charter right not to remove bike lanes.

Hopper: We’ll end with the words of former Saskatchewan premier Allan Blakeney. Shortly before his death in 2011, he said the curse of the Charter is that it seemed to convince Canadians that “virtue resides in the judicial process while venality resides in the political process.”

This was a guy who actually signed onto the Charter, remember. And his one hope, in his last years, he said, was that Canadians would rise up to resist a rule by judges and “contest the implied proposition that the courts are always standing on the side of the angels.”

• How the country ignored a terrorist mass murder: Canada Did What? podcast
• The separatist swindle of the century: Canada Did What? podcast

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