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Charter angst

Cover Story
|Written By Jim Middlemiss
Charter angst

Canada has now had a quarter-century of living under a Constitutional democracy governed by an entrenched Charter of Rights and Freedoms. After 25 years, the groundwork has been laid, but the real fight over rights and freedoms has just begun.

The Criminal Code aside, no single piece of legislation has impacted the practice of law like the Constitution Act,T 1982, which introduced the Canadian Charter of Rights and Freedoms. But the Canadian Charter of Rights has done more than that — much more. In 25 short years, it has changed the face of the nation.

On April 17, 1982, with the stroke of a pen then prime minister Pierre Elliott Trudeau and the Queen repatriated the Constitution and entrenched the Charter as the supreme law of the land. It changed the nature of our judicial system and ushered Canada into the forefront of constitutional change and human rights law, giving rights the teeth that the Canadian Bill of Rights couldn’t.

This month Canadians celebrate the Charter, which has been studied as a model for nations around the world.

“It was a big event,” says Roderick McLeod, a litigator with Miller Thomson LLP, who was the Ontario assistant deputy attorney general at the time of the constitutional negotiations. “It was new, it was exciting, and it was change for people who may have been frustrated with the way the system worked before.”

If it was change people wanted, that’s certainly what they got. During a quarter-decade — a blink in the continuum of time — Canada’s Supreme Court has been called on to interpret the Charter on everything from same-sex marriage to Sunday shopping, abortion, private health care, and criminal law issues. The Charter has left virtually no policy stone unturned, and dug right at the heart of the values, principles, and social policies that drive this nation.

“It’s definitely shaped society,” says Eugene Meehan, an Ottawa litigator at Lang Michener LLP who practises before the Supreme Court. “Every time a decision of the Charter has changed a government practice or Parliamentary decision, it has shaped Canadian society. On the other hand, society has shaped the way the Charter is interpreted by the courts. It’s a balancing act — a dialogue between the two. It’s not a one-way street constitutionally.”

What the Charter has done, says noted criminal lawyer Brian Greenspan, is moved us “toward distinctly Canadian jurisprudence. The fact that Canada has a colonial history dictated domestic law.” As a result, we followed English precedent over American case law. Now, we have carved out our own niche that falls somewhere between the two.

But these rights we’ve enshrined don’t come cheap. Criminal law cases like Stinchcombe, which dealt with Crown disclosure, and Askov, which set out time frames for bringing accused to trial, cost the criminal justice system millions of dollars, as police forces and Crown law offices across the country scrambled to adjust their practices to accommodate the enormous change to criminal law.

Cases like Chaoulli, dealing with the right to access private health care, will likely overhaul medicare in a fashion that politicians and medical bureaucrats can’t or won’t.

“I think whenever you get a decision like Chaoulli or the decision on same-sex marriage . . . you have some very significant consequences in the allocation of tax dollars,” says Martin Mason, managing partner of the Ottawa office of Gowling Lafleur Henderson LLP.

But all this change comes at a price that is not just monetary, but societal. The public jury is still out on the Charter’s beneficial effect on Canada. A recent survey of Canadians’ attitudes towards the Charter, conducted by SES Research for Policy Options magazine, paints a disturbing picture.

Only six out of 10 Canadians gave the Charter a thumbs up, while four out of 10 gave it a thumbs down or weren’t sure, says Nik Nanos, whose firm conducted the survey.

It also exposes a strong generational divide. One-third of seniors feel the Charter is moving the country in the wrong direction, while 65 per cent of those aged 18 to 29 like the way things are heading.

When asked why the Charter was moving the country in the right direction, only 28 per cent said it was because it protects rights and freedoms, 18 per cent said it prevents discrimination, and 16 per cent said it works. Only 3.1 per cent said it actually reflects our values.

In terms of negatives, there were few surprises. About 14 per cent felt the Charter went too far, 13 per cent said it gave criminals too many rights, 11 per cent said the majority was losing rights to the minority, and 10 per cent felt there were too many rights in general.

While Charter critics bemoan the ability of courts to override Parliament as the final voice of Charter interpretation, it’s not a fear shared by the majority of the public. About 54 per cent say the courts should have the final word, though 31 per cent favored Parliament.

“I think what surprised me the most was that the Charter did not have more support,” says Nanos. “Our initial reaction was who in their right mind can be against Charter freedoms and rights?”

Part of the problem, Nanos says, is media portrayal of court cases. The public only hears about the sensational cases, which skews perception. “They don’t see the 99 per cent of cases that go right.”

While the public endures Charter growing pains, so too does the profession. Despite more than a decade of Charter litigation and rulings in the criminal realm, lawyers still bring forward frivolous and vexatious Charter motions. It was a concern raised in a speech to the Criminal Lawyers’ Association by Ontario Court of Appeal Justice Michael Moldaver in October 2005.

He noted that since the Charter, pre-trial motions “have become this country’s greatest growth industry. The trend we are seeing today is truly remarkable.” They are lasting two to three times longer than the actual trials. He noted that some are nothing more than “fishing expeditions.”

He commended defence counsel for being “trailblazers” in the early years of the Charter’s life, “But now I believe a new area has dawned. Now I believe the time has come for you to step back and take stock. Now I believe the time has come for you to be much more discerning in your use of the Charter.” The days are gone of throwing up a “medley of Charter issues in the hopes that one or two might stick.”

He reiterated some of his concerns last November in a speech to a justice summit, when he wrote: “Do I have a problem with counsel who trivialize and demean the Charter and who use it, not as a means of promoting justice, but as a means of delaying and in some cases obstructing it? You bet I do.”

Putting Pandora back in the box, however, is no easy task. Once the Charter power was unleashed, it emboldened lawyers to bring forward creative arguments, and if your client’s liberty is at stake, it’s hard not to throw up that “medley” in the hope that something does stick.

Ottawa lawyer John Nelligan, who headed up the Canadian Bar Association’s committee on constitutional activities back in the 1980s, says, “I am concerned with the amount of time the court has had to spend doing the fine tuning on it (the Charter).”

But it’s not just the criminal law realm suffering Charter angst. We’re still early in the interpretation game. “The Supreme Court has fleshed out the bare bones of the Charter,” says Roger Tassé, a lawyer at Gowling Lafleur Henderson LLP in Ottawa, who was the federal deputy justice minister at the time of repatriation. He says the Charter was not supposed to be a tabula rasa, but neither was it drafted in finite terms. It was meant to be open to interpretation for “the courts to define.”

And much of that definition is yet to come. If you thought the early days of the Charter were gut wrenching for the nation from a social policy and rights standpoint, the next 25 years will be equally so. That’s because the low hanging Charter fruit has been picked. Basics like right to counsel, free speech, and right not to be discriminated against on enumerated grounds such as sex, have been decided. The next wave of Charter litigation will prove to be much more painful, as it will pit more Charter rights against each other.

While the courts have said there is no hierarchy of Charter rights, judges will slowly be forced to place them in some sort of ranking order and the warring factions will likely become the proponents of s. 15 equality rights versus the adherents of s. 2(a), freedom of conscience and religion and enthusiasts of multiculturalism.

Meehan, for example, notes that the Charter’s preamble says it was founded upon the supremacy of God and the rule of law — words that have yet to be interpreted. Just whose God is not clear.

Section 28 deals with equality of men and women, while s. 27 deals with enhancing the multicultural heritage of Canada. Many such cultures do not carry a Western viewpoint towards equality of sexes, setting a clash of values that goes to the heart of Western-based democratic philosophy.

At a Law Society of Upper Canada symposium in 2005 celebrating the 20th anniversary of the passage of Charter s. 15, (it came into force three years after the Charter) leading academics spoke about the pending clash of Charter rights.

Beverley Baines, a law professor at Queen’s University, noted that “Feminists who fought to strengthen the guarantee of sex equality of s. 15 never suggested that the state was the only threat to women’s equality. We were concerned that the multiculturalism provisions might limit women’s equality and that’s what led us to lobby for s. 28.”

She says future cases will “pit claims for freedom of religion against women’s equality rights” and she expects that polygamy laws could fall, noting it’s easier to establish a Charter breach under s. 2(a) than s. 15. While the first 25 years of the Charter has largely been focused on criminal rights, that’s going to change. The increase in interest groups and interest-based litigation means more Charter challenges that will surely change the face of the nation.

A quarter-century from now the first generation of lawyers to litigate under the Charter will begin to die off. Chances are they won’t recognize the country they helped shaped. It’s the price you pay for rights.

  • Canadian Privacy Consultant/Expert

    Murray Long
    I am writing a report on Canada's adoption of OECD privacy principles for a 20th anniversary event/international privacy conference later this year.

    This includes a discussion of how privacy rights have also been enshrined in Charter decisions over the years. I am quoting Brian Greenspan's comment from the article above and I wanted to know who actually wrote this article so that I can properly attribute it.