Canadian Charter of Rights and Freedoms - Criticism

Criticism

While the Charter has enjoyed a great deal of popularity, with 82% of Canadians describing it as a "good thing" in opinion polls in 1987 and 1999, the document has also been subject to published criticisms from both sides of the political spectrum. One left-wing critic is Professor Michael Mandel, who wrote that in comparison to politicians, judges do not have to be as sensitive to the will of the electorate, nor do they have to make sure their decisions are easily understandable to the average Canadian citizen. This, in Mandel's view, limits democracy. Mandel has also asserted that the Charter makes Canada more like the United States, especially by serving corporate rights and individual rights rather than group rights and social rights. He has argued that there are several rights that should be included in the Charter, such as a right to health care and a basic right to free education. Hence, the perceived Americanization of Canadian politics is seen as coming at the expense of values more important for Canadians. The union movement has been disappointed in the reluctance of the courts to use the Charter to support various forms of union activity, such as the "right to strike".

Right-wing critics Morton and Knopff have raised several concerns about the Charter, notably by alleging that the federal government has used it to limit provincial powers by allying with various rights claimants and interest groups. In their book The Charter Revolution & the Court Party, Morton and Knopff express their suspicions of this alliance in detail, accusing the Trudeau and Chrétien governments of funding litigious groups. For example, these governments used the Court Challenges Program to support minority language educational rights claims. Morton and Knopff also claim that crown counsel have intentionally lost cases in which the government was taken to court for allegedly violating rights, particularly gay rights and women's rights.

Political scientist Rand Dyck, in observing these criticisms, notes that while judges have had their scope of review widened, they have still upheld most laws challenged on Charter grounds. With regard to litigious interest groups, Dyck points out that "the record is not as clear as Morton and Knopff imply. All such groups have experienced wins and losses."

The political philosopher Charles Blattberg has criticized the Charter for contributing to the fragmentation of the country, at both the individual and group levels. In encouraging discourse based upon rights, the Charter is said to inject an adversarial spirit into Canadian politics, making it difficult to realize the common good. Blattberg also claims that the Charter undercuts the Canadian political community since it is ultimately a cosmopolitan document. Finally, he argues that people would be more motivated to uphold individual liberties if they were expressed with terms that are much "thicker" (less abstract) than rights.