The Lawyers Weekly - April 13, 2012

Constitutional Law
still be in future

TIM CLARK / THE CANADIAN PRESS

Greatest tests
of Charter may

As we reflect on three decades of the Charter of Rights and Freedoms, do we see the enduring energy and ambition of youth or the pragmatic judgment of maturity? As with many 30-year- olds, it’s likely a little of both.

Constitutional rights are never self-executing, and so the story of the Charter is as much the story of the Supreme Court.

There were many exuberant moments in the early years where the Dickson Court established the bold direction and new tenor of Charter jurisprudence. The court’s assertion in Hunter and Southam (1984) that the Charter would be given a “generous” and “liberal” interpretation consonant with its purposes, and in Singh (1985) that “administrative convenience” would not be permitted to justify Charter infringements, set important and enduring themes.

Early bold decisions such as the B.C. Motor Vehicles Reference (1985) affirmed that the Charter would not be limited to the “ ori-ginalism” of its drafters’ intent but would, even more so than the Constitution Act, 1867, be interpreted as a “living tree”—in B.C. Motor Vehicles Reference, that involved extending s. 7’s scope to encompass substantive as well as procedural principles of fundamental justice.

Early Charter cases dominated headlines and shaped Canada’s national identity.

Morgantaler (1988) (striking down the abortion provision of the Criminal Code) and Rod-riguez (1993) (upholding the assisted suicide provision of the Criminal Code) galvanized the media and public discourse; Big M Drug (1985), Keegstra (1990) and Andrews (1989) set the tone for how the Charter would reinforce Canada’s culture of tolerance within a multicultural democracy.

With these cases—and even before the Secession Reference (1998)—the Supreme Court of Canada emerged as a vital nation-building institution.

LORNE
SOSSIN

There have also been low points where the court’s approach to the Charter has attracted significant criticism, including NAPE (2004) (where it accepted budget cuts could justify the Newfoundland government reneging on pay equity claims), Suresh (2002)

(where the court did not accept that deporting a person to a place where he or she could face torture would in every case shock the conscience of Canadians) and the Labour Trilogy (1988) (where it rejected the right to strike) come to mind.

The maturing of the court in relation to the First, the Supreme Court has been revisiting and refining its approach to key rights.

Such cases included: Health Services (2007), where the court reversed its labour trilogy approach and recognized a constitutional right to collective bargaining; Burns (2001), where the court reversed its earlier view and held that extraditing someone who faced the death penalty violates the principles of fundamental justice; and Martin (2003) where it reversed its earlier stance and held tribunals that have the power to decide questions of law also have jurisdiction over the Charter.

The second sign of maturity is a comfort level with the balanced approach to the Charter.

While courts continue to issue dramatic rulings striking down laws (for example, the 2011 Bedford decision striking down the laws criminalizing activities related to prostitution) and government actions (in Insite in 2012, the court quashed the federal government’s attempt to shut down supervised injections in Vancouver).

At the same time, in 30 years, the court arguably has yet to issue a decision under the Charter that required a substantial reordering of government fiscal priorities (although Chaoulli (2005) came close).

And in cases such as Khadr
(2010), where the discretion of
government in relation to
national security is at issue, the
court has chosen to preserve that
where it matters most (in that
case, declining to impose a rem-
edy on government for violating
the Charter rights of a Canadian
held at Guantanamo Bay).

Queen Elizabeth II signs Canada’s constitutional proclamation next to Prime Minister Pierre Trudeau in Ottawa on April 17, 1982. Leaning over to ensure the document does not blow away are Michael Pitfield (left) and Michael Kirby, clerk and deputy clerk of the Privy Council.