Charles Moore's article in the Telegraph-Journal of Dec. 2, condemning the Canadian Charter of Rights with the help of Julian Fantino, former Toronto Chief of Police, reminded me that Mr. Moore and Mr. Fantino might be kindred spirits of long-ago England's King John.

As the Magna Charta was being signed in 1215, King John muttered gloomily, "What is the world coming to?"

There is no question, that the Magna Charta was the starting point of free institutions and the first step in the struggle to wrestle power from the King and shift it to nobles and barons and eventually Parliament. These small gains and relief from absolutism were soon lost and remained only a memory until the 1600s, when the Levellers took up the cause and argued for the recognition of fundamental, inalienable rights.

In 1670, William Penn tried to speak and preach on the streets of London without permission, and when he attempted to defend himself by summing up the inalienable rights of Englishmen from the Magna Charta at his trial, the Lord Mayor said, "Stop his mouth, jailer. Bring fetters and stake him to the ground!" The jury were instructed by the Mayor to convict, and when disregarding the instructions, they acquitted Penn, each juryman was fined for contempt. So much for Charles Moore's "pre-Charter legal system operating under the principle, rooted in the Magna Charta." Mr. Penn afterwards published the speech he would have made if allowed to proceed, under the title "The golden rule against tyranny."

Rights in England

Nineteen years later, in 1689, England's Bill of Rights was adopted. It is important to understand that England's Bill of Rights was not a recognition of the inherent natural rights of individual persons, but was the beginning of the supremacy of Parliament and the will of the majority. This Bill of Rights came following the 1645 attempt by the Levellers to have an agreement with the people, where they mentioned for the first time "inalienable" rights. But England was not ready for such a radical change, preferring instead the protection that comes from majority rule.

We know, however, from experience and especially 20th century history, that it is not the majority that have to fear the supremacy of Parliament. We know that an indifferent majority can allow its government to ruthlessly destroy the lives and crush the liberty of its minorities.

Thus, while the majority of English people were content to leave the protection of their rights in the hands of Parliament, the talk about inalienable rights did not stop, and 100 years later the debates about freedom under government and inalienable natural rights came to the American colonies. In a letter Thomas Jefferson wrote on March 15, 1789 to James Madison he said, that "the tyranny of the legislatures is the most formidable dread at the present, and will be for many years."

Steeped in British tradition which revered the concept of the supremacy of Parliament, the early provinces of Canada gave very little thought to fundamental rights. But, by the middle of the 20th century, it became evident that Parliament and the provincial legislatures could not be counted upon to protect fundamental freedom.

The most glaring example of this failure occurred in Alberta in 1937, when the Social Credit government tried to impose censorship on the press to prevent criticism of its attempt to change the provincial banking system. A few years later, the province of Quebec and Premier Duplessis (who was also the Attorney General) enacted a law known as the Padlock Law to harass the Jehovah Witnesses, who were considered to be atheists and the "twin brothers of communists."

In a series of decisions, the Supreme Court of Canada found a way to rule that the actions of the Quebec Attorney General exceeded the constitutional restrictions of the British North America Act. Out of these decisions came the first seeds of recognition that there existed in Canada an absolute right of freedom of religion.

Rights in Canada

In 1946, John Diefenbaker took up the call and when he became Prime Minister in 1957 he vigorously pursued the enactment of a Bill of Rights, which became law in 1960. Unfortunately, it was only an Act of Parliament, and could be amended or abolished by a simple majority.

A further development in the recognition of fundamental rights for all Canadians and the safeguard of those rights came with the appearance of Pierre Elliot Trudeau on the political scene in 1960s and the adoption in the 1980s of the Canadian Charter of Rights and Freedoms.

It is a long way from the Magna Charta of 1215 to the 1982 Canadian Charter, and with it, the assurance that our fundamental rights are greatly more protected. With respect to the treatment of minorities, and matters affecting the dignity of the human person, and the many times of majority misrule, Prime Minister Trudeau knew all too well that the only remedy for majority misrule is the American invention of a judicial review of legislation by an unelected, independent judiciary.

Rather than "notoriously fickle," which Mr. Moore wants us to believe is a feature that dominates our Supreme Court, the Court is an institution of government which is furthest of all beyond the popular reach - which is made, as far as any institution can be, independent of public feeling, and invulnerable to the attack of majorities. However, with these safeguards in place, it is still important to know that fundamental rights can be lost again.

There is no doubt about Mr. Moore's position. He wants the Canadian Charter killed. His language is full of hope, and exuberant faith with no sign of charity that "the vaunted Charter is becoming less of a sacred cow."

Why the Charter matters

We should not lose sight of the discrediting rhetoric still flowing from the lips of the Charles Moores and the Julian Fantinos, who would in a second put their full faith in the supremacy of Parliament and the positive law as the last word about all aspects of government action.

Their discrediting rhetoric is an appeal to the emotions of the majority about "the types of decisions that were made previously by elected representatives," without any regard on their part to human nature. The sameness of human nature and our common humanity gives rise to our basic rights and the need for their protection, but this same nature also leads to vice and folly in human actions.

With the gains made towards more awareness of our fundamental rights, we should still be alert to the warning of James Madison in a letter to Thomas Jefferson of 1788. He wrote: "Wherever the real power in a government lies, there is a danger of oppression. In our governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of government contrary to the sense of its constituents, but from acts which the government is the mere instrument of the major number of the constituents."

Frank Rodgers is a former solicitor to the city of Saint John.