December 1, 2011 Fraser Forum Chris Schafer, executive director of the Canadian Constitution Foundation (www.theCCF.ca) and former Fraser Institute intern, recently gave a presentation on economic freedom and the Supreme Court of Canada. Schafer sat down with Fraser Forum to discuss economic liberty and why it is crucial for Canadians.
Fraser Forum: You believe that economic freedom is included in the Consitution. Could you explain this?
Chris Schafer: Section 7 of the Canadian Charter of Rights and Freedoms provides “the right to life, liberty, and security of the person.” I think economic freedom or economic liberty is, or ought to be, a component of “liberty” under the Charter.
Unfortunately, it has become almost a mantra for legal commentators and lower courts to write that section 7 does not include economic liberty. However, the Supreme Court of Canada has always been careful not to close the door to interpretations of section 7 that might include economic components.
FF: How do you define liberty and how is it different from the way the Supreme Court of Canada has decided to define the word?
CS: According to dictionaries, the word “liberty” revolves around notions of freedom of choice and the absence of external constraints. Unfortunately, in early Charter jurisprudence, the Supreme Court of Canada did not adopt this definition. Instead of accepting that legislation and regulations often violate liberty, then forcing the government to defend its proposed laws, the Supreme Court simply defined away the problem by deciding that violations of the common understand- ing of “liberty” were in fact not violations of liberty. As a result, governments have routinely not had to defend before the courts what otherwise would be violations of liberty. For example, in R. v. Edwards Books and Art Ltd., where a store desired to remain open on Sunday, the Supreme Court of Canada decided that liberty in section 7 of the Charter of Rights and Freedoms “is not synonymous with unconstrained freedom” and does not include “an unconstrained right to transact business whenever one wishes”.
FF: In what ways do you think that the courts have been ignoring economic liberty?
CS: Canadian courts have ruled that a wide variety of activities that would certainly fall within the diction- ary definition of “liberty” do not fall within the concept of “liberty” for the purposes of section 7. For instance, according to the Supreme Court of Canada, liberty in section 7 of the Charter “is not synonymous with un- constrained freedom” and does not include “an unconstrained right to transact business whenever one wishes.” Likewise, the Ontario Court of Appeal has held that “liberty” does not include the right of a doctor to practice his profession.
As such, it would have accorded far better with the plain use of language for the courts to have acknowledged that laws restraining business hours and medical
licensing, for example, were indeed restrictions on liberty but were justified under section 1 of the Charter.
By tightly circumscribing the scope of section 7, what the courts have effectively accomplished is not the trivialization of the Charter so feared by some Supreme Court of Canada judges in 1985, but the far worse trivialization of Canadians’ liberty.
FF: How have you been bringing attention to economic freedoms that are currently ignored?
CS: The Canadian Constitution Foundation has been bringing attention to economic freedom through the cases it litigates, most notably in our “consumer choice” defence of our client, raw milk dairy farmer Michael Schmidt.
In January 2010, Schmidt was acquitted of 19 charges related to the production, sale, and distribution of raw milk and raw-milk products related to his cow-share business. The court found that Schmidt did not contra- vene the province’s Health Protection and Promotion Act and the Milk Act because he only distributed the milk products to the joint owners of a cow-share and not the public at large. (In Canada, it is illegal to market, sell, distribute, or deliver unpasteurized milk or cream). However, the province of Ontario appealed.
On appeal, the Canadian Constitution Foundation argued that the prohibition on the distribution of raw milk denies raw milk farmers like Schmidt his right to economic liberty because not only do the penalties threaten to destroy him financially, but the inability to continue in the occupation he has followed since child- hood would be a denial of his right to economic liberty by preventing him from working and earning an honest living.
FF: Why is the right to economic freedom so important to Canadians today?
CS: The Canadian Constitution Foundation sees “economic freedom” as the basic human right to earn, own, and enjoy private property; the freedom to contract; and such protections as due process.
The right to economic freedom is, or ought to be, important to Canadians today because economic freedom, in addition to individual freedom, is crucial to the social and economic well-being of Canadians. Such freedoms go hand in hand with desirable social and economic outcomes such as greater economic growth and rising incomes. In fact, individual freedom and economic freedom often advance each other. Economic freedom begets individual freedom, and vice versa, both leading to increased economic prosperity for Canadians.