HOW 'LIBERTY' IS EVISCERATED BY CANADA'S COURTS

Recent news stories reported the government of Iran was considering
outlawing certain hairstyles for men -- ponytails, for instance.
However, widespread ridicule from abroad has apparently caused the
Iranian government to back down temporarily.

Nevertheless, Iranians have been subject to grooming codes and dress
codes for decades. This summer, Iranian police have reportedly been
arresting women for such heinous offences as wearing too much lipstick
or sporting suntans. Barber shops have been ordered by police not to
pluck men's eyebrows.

Do the people of Iran enjoy liberty? Most Canadians, upon hearing of
these bizarre, intrusive rules, would respond with a resounding "No."
Such regimentation, enforced by law, spells full-fledged
authoritarianism to us -- the very antithesis of liberty.

But how does our law compare? The Canadian Charter of Rights and
Freedoms appears to provide a good foundation for liberty, enshrining
it as a right that cannot be infringed by the state unless the
infringement is both reasonable and "demonstrably justified in a free
and democratic society."

But something peculiar happened when this simple framework for
safeguarding liberty started coming under the scrutiny of our courts.
Judges started chucking out many activities that the average person
would probably expect liberty to include, virtually eviscerating the
concept.

In 1986, for instance, then chief justice Brian Dickson wrote: "In my
opinion 'liberty' in ... the charter is not synonymous with
unconstrained freedom."

Well that's an interesting opinion, but it is contradicted by the
dictionary. "Liberty" does indeed mean the condition of being free
from restriction or control.

Why should "liberty" in the charter be interpreted differently from
"liberty" in the dictionary? The answer seems to be that the courts
hate making decisions about what is demonstrably justified in a free
and democratic society, so they try to prevent cases from ever
reaching that stage.

Over the years, litigants have come to court thinking that liberty
would encompass such things as transacting business at whatever time
of day one chooses, engaging in the medical profession after being
licensed to do so, and smoking marijuana for recreational purposes in
the privacy of one's home.

Rather than making the decisions that the charter requires of them as
to when such activities can legitimately be restricted by the state,
the courts have often just chickened out. They've simply defined the
targeted activities out of the realm of liberty. If smoking pot for
kicks is not part of liberty, the law prohibiting it obviously can't
abrogate liberty. A little sleight-of-hand and -- poof -- the tough
decisions vanish.

Since 1988, only "decisions of fundamental personal importance" have
been allowed to remain within the realm of charter liberty. There
haven't been many that filled the bill. Aborting a fetus was one.
Smoking marijuana to prevent epileptic seizures was another. Those
cases that have qualified are dogged by the unavoidable suspicion that
the outcomes have more to do with the personal predilections of the
judges than with any predictable or objective standard.

Take abortion, for example. While the decision to terminate a
pregnancy might be monumentally important for some women, others seem
to shrug it off with bored indifference. According to the Centers for
Disease Control, 26 per cent of U.S. women who get abortions have
already experienced one previous abortion; 11 per cent have had two;
and 7.5 per cent have had three or more.

The test of fundamental personal importance is so obviously subjective
and immeasurable that adopting it was wildly problematic in the first
place.

So how do we compare to Iran after all? Do Canadian men have a charter
right to wear ponytails or have their eyebrows plucked? Do Canadian
women have a charter right to wear heavy lipstick and be suntanned?
Obviously not, according to Canadian jurisprudence. Those aren't
"decisions of fundamental personal importance."

But that's ridiculous. Of course Canadians should have the liberty to
make such decisions for themselves. If we can't be trusted with the
responsibility for minutiae like that, why should we be considered
competent to handle the important issues? How will we ever acquire the
necessary wisdom and character for important decisions if we can't
practise on the small stuff?

And if the average citizen can't be trusted to govern himself on such
issues, what qualifies our elected representatives to govern the
entire populace on them? Does winning an election bestow instant
infallibility upon a politician who the day before was deemed too
stupid to determine his own hairstyle?

Many newcomers to Canada hail now from places where it is taken for
granted that the state will legislate hairstyles and suntans.

If we don't want to end up with full-fledged authoritarianism
ourselves, it's time for the courts to re-think those late-1980s
decisions and realize that yes, liberty under the charter must be
synonymous with unconstrained freedom, and the state must bear the
burden in every single case of demonstrating why violating liberty is
justified.

Karen Selick is the litigation director for the Canadian Constitution
Foundation. This article is excerpted from The Lawyers Weekly.