Post-Liberal Constitutionalism

In making my way through the Standing Committee on Justice and Human Rights links I posted yesterday, I’ve come across some interesting tidbits from the November 1, 2006 evidence hearing.

• In his evidence, John Carpay from the Canadian Constitution Foundation said: “I’ve heard the argument that the court challenges program should receive tax dollars because it promotes justice by assisting groups and individuals in pursuing justice in the courts. This argument would hold water if everybody agreed on what justice is.” As Carpay rightly notes, the concept of justice has been argued since Plato, and no consensus exists. He continues by saying, “[the CCP] is used to help people defend a certain vision of justice.”

What do you make of Carpay’s argument? It seems that he is concerned with the end before the means – the CCP was intended to provide the opportunity (where one might not otherwise exist) for a group to participate in litigation that directly impacts upon them, and whether this participation resulted in the prevailing of their “vision of justice” was left at the discretion of the judges.

• Chantal Tie counters Carpay: “I’ve just heard two people talk about differing visions of equality, differing visions of justice. We have a vision that this government has adopted. It’s called the charter. That is the common vision.”
• She continues: “The charter recognizes that minority rights are not always protected by the majority. In the minority community, which I come from, we have come to understand that true democracy is not simply majority rule; it means protection of the minority within a system of democratic majority rule.” And then: “The government, therefore, has an essential role in the proper functioning of our democracy, which means the government has to ensure that minority rights are protected.”

Here we move into the realm of positive obligation – is the protection of the Charter rights of the minority [and then, more broadly, every citizen] an obligation on the part of the government?

• Rénald Rémillard of the Fédération des associations de juristes d’expression française de common law continues along the same lines: “There is…the unwritten constitutional principle of minority protection.”
• He then returns to Carpay’s argument: “Some people may not like the content of justice, but I think everyone understands what access to justice is. You may be able to appear before the courts or you may not because you don’t have the financial means to appear, defend and promote your interests. Access to justice must not be confused with the content of justice.”

• Finally, John Williamson (who, together with Carpay, supported the abolishing of the CCP), sums up their argument: “No organization has the right to accept tax dollars and then go press their pet issue. If they want to go out and lobby on their issue, they should go out, find Canadians to join their cause, to donate to their cause, and then get involved politically.”

He believes that taxpayers should not be responsible for supporting an organization who’s ideas they don’t necessarily agree with. But since when has a taxpayer been able to pick and choose where they want their money to go?

What do you make of these arguments?

Filed by Rob Blake at 11:21 am under Uncategorized
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