Charter Rights Beyond the Courtroom

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Charter Rights Beyond the Courtroom

As a Calgary criminal defence lawyer I often find myself arguing broad principles before Judges, asking them to assiduously protect the Charter protected interests of the accused so that the Charter protected interests for all Canadians are respected.  In Canada, it is ironic that the Charter rights of the law abiding are recognized through the Charter’s application to those accused of crime.  Unlike many family and friends who honesty have difficulty applying Charter principles to those who they think have done wrong, I sense that many participants in criminal justice are not nearly as candid.  I often feel that statements of principle are marginalized as platitudes.  I have often said to Crown prosecutors, who resist obvious defence Charter motions, that the pursuit of winning a legal point (or the even the case) diminishes their own Charter protected interests.  I have even heard of a number of trial judges denigrated for being “soft on crime” for doing nothing more than courageously upholding the Constitution and our rule of law.  This rings as obscenely ridiculous, for those who are “strong on principle” are obviously law-abiding citizens, who have no interest in unleashing alleged criminals onto a vulnerable public (for the public includes themselves).  Ask yourself, what’s easier: satisfying the public palate for revenge by convicting the accused or acquitting a person who is potentially guilty.  Ask yourself, what’s easier, holding the Government accountable for its excesses or ignoring the Charter protected interests of an accused because nobody cares about the rights of an alleged criminal?


In Canada, these issues have generally been confined to the halls of criminal justice (or injustice), with little application to the everyday lives of ordinary citizens.  But world events signal a change – where law abiding people will need to ask whether they are prepared to surrender freedom – and I don’t just mean a notional surrender during a criminal trial, I mean in their everyday lives.


Recent world events, resurrect Benjamin Franklin’s famous words: “those who would give up Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety”.   


Speaking about a potential war in Europe, General McChrystal warned that we now face a real threat to our essential freedoms.


“We are beginning an era”, he said, “in which our ability to leverage technology to track people and control populations is going to create a lot of tension; …we are going to see a lot more population control measures”.  The context of McChrystal’s comment was in relation to surrendering civil rights. 


Canada is not immune.  Both national and international events threaten our security.  The question is, how strong are we?  Are we prepared to give up what makes us Canadian because of the actions of enemies to our way of life? 


I fear these are questions we are soon to be wrestling with. I fear that if we are prepared to marginalize civil liberty as a platitude within the relative safe confines of a criminal courtroom, there is little hope that we will ardently defend these same rights as the world becomes more and more unstable. 


To this I say, if we can’t stomach the pain of protecting our own freedom within our own borders, by sending the message that we will not accede to population control measures that diminish the value of our rights, then it matters not how many soldiers we send, how many bombs are dropped or how many lives lost, because when we give up what it means to be Canadian, we have already lost. 


David G. Chow

Calgary Criminal Lawyer