When Canada became a Dominion, a self-governing territory of the British Empire, it followed the governance model of the United Kingdom: the Westminster system. Inherent within that system of governance was the ideal of a governing elite who ruled for the good of the state, which coincidentally helped them, too, and the emphasis was on ‘ruling over’ the people.
Though we would see progress in the development of citizenship, rights were never at the forefront of this system. It would not be until the introduction of the Charter of Rights and Freedoms in 1982 that we would see this ideal become an inalienable position within Canada. Case after case would find itself before the courts that would pronounce the rights of individuals, limiting the power of the state and its agencies. And once a right is established, it does not go away just because the government or society does not like this fact.
At first this was a welcomed position, as Canada could see the benefits of this system that balanced the power of the state and the freedoms of the individual. More recently, however, as the political culture changed within Canada, the political parties themselves did not like this as it eroded their powers to rule, to shape Canada, as they wanted. And so we have seen bad legislation passed, which will only lead to more court challenges in the future as people defend their rights.
The most recent example of this was the passing of C-46, which saw a return of powers of detainment and of search and seizure to the police in an effort to reduce impaired driving. On the surface, it is difficult to argue with the principle at hand, the protection of citizens from impaired driving, and, of course, this comes on the heels of the new laws surrounding marijuana. There is little excuse for this behaviour. But we cannot forget why the rights protecting citizens were established in the first place: agents of the state abused these powers in the past, and, thus, individuals needed to be protected. The Senate recognized this, in one of the few times in recent history that it seemed to operate as it was intended, but its recommendations were ignored by Parliament. The result of this will be to see court challenges, which may see the legislation overturned, leading to greater restrictions of police powers in the future.
This shortsightedness by our parliamentarians indicates a cultural struggle within Canada, which sees the pendulum swing between the collective and individual powers within our society: how much imposition of the state will we tolerate within our personal lives? This is an interesting question, as the ruling elite would like to have that control, with little responsibility for it, but what is it that we want as Canadians? This is the essence of what it means to have rights and freedoms, which come with their own responsibilities: to respect those rights and freedoms of others.
John Kennair is an international consultant and doctor of laws who lives in St. Albert.
