The Charter under assault

In the weeks after the federal government and all the provinces except Quebec agreed on the terms for a Charter of Rights and Freedoms, many of the stories that were published in major media outlets were less than positive about this significant addition to the Constitution.

The Charter under assault
Sebastien Thibault

In the weeks after the federal government and all the provinces except Quebec agreed on the terms for a Charter of Rights and Freedoms, many of the stories that were published in major media outlets were less than positive about this significant addition to the Constitution.

The Charter was frequently described as “controversial” in news stories. As well, there were warnings about public safety. A story by the Canadian Press news agency that ran in December 1981 had the headline, “Charter: Criminal’s friend: Mountie.”

A spokesman for “rank-and-file” RCMP officers stated that the Charter would give too much power to the judiciary. “No matter how eminent or learned the appointees of the court may be, the fact remains they are not accountable to the people for their actions,” the spokesman said. “Canadians will no longer be able to assume their streets will remain safe.”

For the most part, the streets have continued to be safe in Canada. What has not declined, however, is skepticism and blame directed at the Charter by politicians, media and various interest groups. Whether it involves the criminal justice system or any other aspect that impacts Canadian society, unaccountable judges is a talking point that is still frequently invoked, nearly 37 years after the Charter came into force in April 1982.

The most recent high-profile example of this took place after Ontario Superior Court Justice Edward Belobaba ruled last September that legislation to reduce the size of Toronto city council, introduced after the election campaign had begun, was unconstitutional.

“I am acutely aware of the appropriate role of the court in reviewing duly enacted federal or provincial legislation and the importance of judges exercising judicial deference and restraint. It is only when a democratically elected government has clearly crossed the line that the ‘judicial umpire’ should intervene. The Province has clearly crossed the line,” stated Belobaba in finding that the law violated the s. 2(b) rights of both candidates and voters in the municipal election.

The response from Ontario Premier Doug Ford was immediate. “The judge’s decision is deeply troubling. The result is unacceptable to the people of Ontario,” said Ford, whose Conservative party won 76 of the 124 seats in the provincial election a few months earlier.

Ford said he would re-introduce the legislation and, for the first time ever in Ontario, invoke the notwithstanding clause. The Court of Appeal granted the province a stay of the ruling, pending an appeal because it found that while the legislation may be unfair, it was not necessarily unconstitutional.

As a result, the notwithstanding clause was not invoked. In his comments after the initial Superior Court decision, however, Ford made clear his opinion about the place of judicial review in our constitutional framework.

“We are prepared to use s. 33 again in the future,” he said. “It is the people who will decide what is in their best interests for this great province,” added Ford, whose party received more than 40 per cent of the popular vote in the June 2018 election.

A few weeks later, Francois Legault, the newly elected premier of Quebec, also promised to invoke the notwithstanding clause if it was necessary to enact a law to restrict public sector employees in “positions of authority” from wearing religious head coverings. “If we have to use the notwithstanding clause to apply what we want, the vast majority will agree,” the leader of the Coalition Avenir Québec said the day after the provincial election.

In the past, the notwithstanding clause has been invoked very sparingly outside Quebec. Even in that province, it happened mostly during the early years of the Charter and focused on French-language issues. The clause was a compromise that the federal government agreed to during the constitutional conference in November 1981 to win the approval of provinces in western Canada.

At the time, Prime Minister Pierre Elliot Trudeau, who was opposed to the provision, agreed that it gave the last word to elected representatives, but he doubted it would be used frequently. Similar comments were made by then-Justice Minister Jean Chrétien. “What the premiers and prime minister agreed to is a safety valve, which is unlikely ever to be used except in non-controversial circumstances,” he said at the time.

Those predictions have generally proven to be accurate. At a time when so-called “populist” governments have shown an ability to be elected — not only in North America but in parts of Europe — there are questions about whether there is still a significant political price to pay in Canada for overriding constitutional rights.

Ford referred to the power as part of the “toolbox” of provincial powers and not necessarily something to be used sparingly. As well, even though the purpose of the Charter is to protect against state overreach and maintain individual rights including those of disadvantaged groups, there has long been a political benefit in this country in characterizing it as something the “elites” use to impose their values on others.

What is not clear is whether the current political climate will have a lasting impact on how the Charter is thought of outside of the legal community.

“The Charter continually ranks very high in polls,” says Andrew Lokan, a partner at Paliare Roland Rosenberg Rothstein LLP in Toronto and an adjunct professor in constitutional litigation at Osgoode Hall law school. “It is even popular in Quebec.” At the same time, these poll results are “in the abstract,” he notes. “If you have a localized dispute, it is a question of the rights of those who may not have a lot of political clout. The abstract support can dissipate.”

A survey conducted by Statistics Canada in 2013 found that 93 per cent of respondents stated that the Charter is an important national symbol (70 per cent said very important, while 23 per cent said somewhat important). That was slightly more than the flag and even more than hockey, which had a total of 76 per cent very important/somewhat important. The same survey had a response of more than 60 per cent who were proud of the country’s Constitution. Of that total, about 20 per cent replied that they were “very proud.”

Richard Albert, a constitutional law professor at the University of Texas in Austin, says the Canadian Charter is respected internationally. “Outside of Canada, the irony is that people look to the Charter and how we govern ourselves as the model,” says Albert, whose research focuses on how countries amend their constitutions.

Albert, who was born and raised in the Ottawa area and was a clerk for Chief Justice Beverley McLachlin in 2003, says the perceptions about the Charter in Canada may stem from a lack of knowledge about it and its purpose. “It is like a kaleidoscope. We see what we would like to see.

“A problem in Canada is education. When I was growing up in Hull and in Orleans, it was not taught to us. Civic education should start in elementary school,” says Albert, who notes that. in some countries such as Japan, this is a focus of the education system at a very young age.

Dino Bottos, an Edmonton-based criminal defence lawyer, says that a lack of appreciation of the Charter may be in part because it has been in place for less than four decades. “The Charter is still in its infancy. We are now in only the second generation of people who have grown up with it as part of their daily lives,” says Bottos, who heads the Bottos Law Group.

He agrees that educating the public about the Charter is important and something that should be a responsibility of the legal community. Bottos also teaches a criminal law and procedure class at the University of Alberta and tries to pass along this message to his students. “I try to instill in them that no matter what area of law they go into, we all have to have regard for Charter rights and they should go out into the world and explain that to friends and relatives [who] are not in the law,” he says.

The field of criminal law is probably the area where the public is most suspicious about the impact of the Charter. Stories in the media where someone is quoted as saying “the justice system has failed” are almost a daily occurrence. This is even though the Supreme Court has long been thought by criminal law experts as consistently showing considerable deference to the powers of law enforcement.

For example, in the landmark case of R. v. Grant in 2009, which re-wrote the legal test for exclusion of evidence under s. 24(2) of the Charter, the majority decision written by McLachlin and Justice Louise Charron outlined the purpose of the inquiry if there has been a breach of rights. “Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns,” they wrote. In a decision two years earlier involving a forced entry by balaclava-wearing Calgary police, Justice Thomas Cromwell stressed in R. v. Cornell that the courts are to guard against “Monday-morning quarter-backing” of the operational decisions of law enforcement.

Even still, it is not uncommon for police, politicians or the media to echo the sentiments of the RCMP officer in the 1981 article and suggest the Charter is criminal friendly. “You will always have politicians saying it is a scary world. You won’t win many elections on protections for the rights of accused persons,” says Bottos. At the same time, he suggests that criminal defence lawyers should engage with the media.

“One way to educate the public is by answering reporters’ questions. I feel it is appropriate to respond and explain my point of view,” he says. “The public generally is not well informed about what actually goes on in a criminal trial. A lack of familiarity breeds suspicion.” In speaking to both local “beat” reporters and national media, he says only on one occasion has he felt that his comments were misrepresented.

If there is an area where the courts and especially the Supreme Court have been more expansive in applying the Charter, it is in cases involving equality rights of disadvantaged or minority groups. Here, there has also been criticism, often by socially conservative organizations or politicians.

“I don’t think anyone can pretend these are not values cases. But judges are doing what they are required to do under our democratically enacted Charter,” says Lokan. As well, on social issues where there may not be a consensus, he says these disputes often end up in the courts because Parliament or a provincial legislature has refused to exercise its powers. “Governments use the courts to hide behind.”

Paul Daly, a public law professor at the University of Cambridge, says the judiciary in Canada still approaches these cases carefully. “Courts tend not to deviate too much from the social consensus on values. This applies in high-profile constitutional cases but also in more low-key cases. Many important tort or contract issues, like whether people hosting a party at home owe a duty not to let a guest drink and drive, turn on value-laden questions about personal freedom,” says Daly, who was previously a law professor and associate dean at the University of Montreal.

“The courts know if they go badly wrong, the notwithstanding clause might be invoked and all things considered, courts would prefer their decisions were respected, not overturned,” he says. “Canadian courts have mostly avoided creating popular backlash — a difficult task in a polity as diverse as Canada’s.”

Trying to prevent a popular backlash when applying the Charter can be a difficult task, however, in part because there are distinct regional differences across the country, notes Albert. “The notion of Canada as a community of communities — I think that is still true today,” he says, referencing a 1979 campaign speech by then-Conservative party leader Joe Clark. “When you are in a country that is a community of communities, it is more difficult to build a connection to a polity.”

While the use of the notwithstanding clause is a valid provincial power, he believes it would be very difficult for any federal government to invoke it because it has never been used previously at that level. “It is a spent power” for the federal government, he says.

A lack of enthusiasm for the Charter has not dissipated in parts of western Canada and that is even more so in the current political climate, says Crystal Norbeck, a labour lawyer at Gerrand Rath Johnson LLP in Regina.

“It has been an uphill battle” in recent years in Saskatchewan for union rights, she says. The governing Saskatchewan Party has been involved in numerous disputes with public sector unions over proposed wage cuts. “They are playing to the base. How that relates to Charter rights is that I suspect the government is in a position where it believes it can ignore them,” says Norbeck. “Part of what is going on in the United States is fuelling this.”

As well, Charter-related litigation always faces financial obstacles. “You have to have a client that is willing to pursue it. You have to have the means. It is expensive,” Norbeck says.

The government in Saskatchewan passed legislation last spring to invoke the notwithstanding clause after a Court of Queen’s Bench judge ruled its funding of non-Catholic students to attend Catholic schools was unconstitutional. That bill has not been proclaimed into law, however, as the case goes to the province’s Court of Appeal.

Politicians picking fights with the judiciary is by no means a new tactic, says Lokan. “This exact debate played out in the U.S. with Thomas Jefferson,” he says, referencing what led to the landmark U.S. Supreme Court decision in 1803 in Marbury v. Madison, which established the scope for judicial review.

“There is always political hay to be made” by criticizing the courts, Lokan says. “There may be a slight change [in Canada] in the use of the notwithstanding clause. There is a reasonable debate, not an alarming debate.” As well, he says, there are few parallels to the current political situation in the U.S. “Trump is so out there compared to historical norms and other populist governments.”


The notwithstanding clause: past use

Federal government: The notwithstanding clause has never been invoked by the federal government.

Quebec: The Quebec government invoked the notwithstanding clause in every piece of legislation between 1982 and 1985 because of its opposition to the enactment of the Charter. Since then, it has been used occasionally in the province, including in the prohibition on languages other than French on commercial signs. When the five-year term on the clause expired in 1993, the province introduced legislation requiring French on commercial signs to be predominant and ended the outright ban on English.

Yukon: It introduced legislation in 1982 that stated that provisions of the act related to the nomination of members of the Land Planning Board operated notwithstanding the equality provisions of the Charter. The legislation, however, never came into force.

Alberta: The provincial Marriage Act was amended in 2000 to define marriage only as the union between a man and a woman, notwithstanding the provisions of the Charter of Rights and the Alberta Bill of Rights. The Supreme Court of Canada ruled in 2004 that the federal government has sole jurisdiction to determine who is eligible to marry. Following this decision, the Alberta government did not invoke the notwithstanding clause again in 2005 to maintain the definition of marriage in the province.

Saskatchewan: The province invoked the clause in 1984 in relation to back-to-work legislation for dairy workers. The legislation was ultimately found to be constitutional by the Supreme Court, so there was no requirement for it to be invoked again after the five-year sunset clause expired. The government introduced the School Choice Protection Act in 2018. It invoked the notwithstanding clause to override a Court of Queen’s Bench decision that found it violated the Charter to fund non-Catholic students to go to Catholic schools. The provincial Court of Appeal granted a stay of the decision taking effect until it hears an appeal. The legislation has been passed, but it has not yet been proclaimed into law.

Source: Parliament of Canada


Charter of Rights by the numbers

8. The number of provinces opposing the federal government at the Supreme Court of Canada in the 1981 patriation reference case (only Ontario and New Brunswick joined with the federal government).

2. The number of Supreme Court judges who concluded that, as a matter of law, the federal government could not amend the Constitution when it impacts provincial rights without the provinces’ consent (justices Roland Ritchie and Ronald Martland).

1. The number of provincial Courts of Appeal — the Newfoundland Court of Appeal — that ruled the federal government could not amend the Constitution unilaterally. Both the Manitoba and Quebec appeal courts also heard reference cases on this issue and ruled the federal government did have this power.

1115. The number of Supreme Court decisions where there has been a reference to the Charter since it was enacted in 1982 (the first Charter case to get to the Supreme Court was argued in February 1984).

184. The number of Supreme Court rulings where Re B.C. Motor Vehicle Act has been cited, since it was released in 1985.

178. The number of other judgments in which Hunter v. Southam has been cited by the Supreme Court since it was issued in 1984.

33. The number of times R. v. Heywood has been referenced by the Supreme Court since it was released in 1994. For the first time, the majority in that case found that “overbreadth” in legislation was a ground for concluding it violated the principles of fundamental justice.

193.The number of Supreme Court judgments where equality rights have been an issue to consider in its ultimate ruling.

95. The number of Supreme Court decisions where “unreasonable search or seizure” has been an issue in a case before the court.

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