Free Coercing Virtue by Robert H. Bork Page B

self-government gradually began to give way to the reality of judicial governance. As F.L. Morton and Rainer Knopff put it, “The fact that the Charter revolution is more a judicial than a legal revolution is evident in the many cases that brought about dramatic legal change without any textual warrant for such change.”
    The substance of the
Charter
, though differently expressed, is similar to that of the American
Bill of Rights
. Section 2 of the
Charter
lists four fundamental freedoms: freedom of conscience and religion; freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication; freedom of peaceful assembly; and freedom of association. Sections 7 through 14 list Legal Rights, such as “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Also named are such rights as security against unreasonable search or seizure and procedural rights of various kinds relating to arrest, trial, and cruel and unusual punishment.
    Section 15 deals with Equality Rights. It first grants a right to equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability.Those rights are at once heavily qualified by the following subsection, which says that freedom from discrimination “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” That subsection takes back much or even most of the equality the first part of section 15 promises. “Amelioration” means preferential treatment for the groups named, and preferential treatment means discrimination against the groups not named. The major group not named is, of course, healthy, heterosexual, white, Canadian-born males. It is disquieting, to say the least, to find permission for governmental discrimination written into the nation’s basic law.
    The
Charter’s
rights and freedoms are not absolute and section 1 attempts to specify their limits:
    The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
    In applying the
Charter
, courts first determine whether a law entails a
prima facie
violation of the basic rights specified by the
Charter
. If a violation is found, the court must then decide whether the infringement can be upheld as a “reasonable limit” that is “demonstrably justified” in a “free and democratic society.” On its face, this provision does notdistinguish judging under the
Charter
from judging under the U.S. Constitution. An American judge applying the Speech Clause of the First Amendment, for example, understands that the statement that Congress (or any other branch of the federal or state government) “shall make no law … abridging the freedom of speech” cannot literally mean that government may not interfere with speech in any way. American courts balance the value of freedom of speech against other social goods and have held, for example, that the amendment does not destroy the law of libel and that time, place, and manner restrictions are appropriate – loudspeakers blasting political messages at midnight in a residential neighborhood may be banned.
    The explicit language of section 1 of the
Charter
actually gives precious little guidance when it states that an infringement of a freedom is valid if it is reasonable and demonstrably justified in a free and democratic society. The
Charter
assumes that courts will review the legislature’s work
de novo
, without, that is, any weight given to the fact that