The Lawyers Weekly - April 13, 2012

THE LAWYERS WEEKLY
April 13, 2012 | 5

query whether courts should be entering that field. In other words, where issues of public policy are at stake, should the courts defer to the policy decisions of governments or not? Essentially, what the court has said is no. If it is a breach of the Charter, it is a breach of the Charter. I think the result is, you are certainly moving a lot of policy-making into the courts.

TLW: Which areas will spark more Charter litigation in the years ahead?

Hogg: I think the other provision that will continue to provide a lot of action over the next 30 years is section 15, the equality guarantee. What has happened in section 15 is that the court keeps changing its mind as to what the doctrine is, so every few years—it is astonishing how frequent this has been—every few years, there is a significant change in the rules as to when you have a breach of section 15. I think what that means is that it is quite hard to predict where section 15 will go. The courts have developed various doctrines, which have been designed to limit the scope of section 15, because every law is potentially subject to a section 15 attack. The trouble is they keep struggling with what the various limitations are.

TLW: Do you think the restrictions will be loosened?

Hogg: One of the restrictions on
section 15 was that the person
complaining had to persuade the
court that he was treated differ-
ently from other people in the
same position—the comparabil-
ity rule. That idea has been loos-
ened. Another doctrine the court
had was that the person making
the claim of inequality had to
show his human dignity had been
impaired…they loosened that
requirement. They are still adher-
ing to the requirement that there
must be a ground that is listed in
section 15 or a ground that is
analogous to those listed in sec-
tion 15. If that were loosened as
well, we would end up with a
considerable expansion of section
15. But I think it is hard to pre-
dict. By the same token, the
courts may well decide to con-
tract these rights. That is true of
section 7 as well.

TLW: If changes in technology make it easier for the state to potentially infringe your privacy, are the courts likely to apply the principles already established under section 8 to decide if there is a Charter breach?

Hogg: I think that is an area where the principles are likely to remain the same. I think what is troublesome about section 7 and section 15 is that new principles keep piling on so that it does make it very difficult to predict where the courts are likely to go in the future.

TLW: The Supreme Court has very been very clear about the importance of open courts and limiting any restrictions on publication. Yet, at the trial levels, it is not uncommon for judges to find exceptions to the open court rules. In Mentuck [R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76], the Supreme Court suggested there be an explicit right for media to appeal publication bans, yet this has not yet happened.

Hogg: I think in all those cases where there are publication bans or other kinds of restrictions on the media, the media should have the right to be represented before any final decision is made and the media should have a right of appeal. The media, in effect, do represent the public in these open courts [and] access to justice issues, because most people can’t actually come to the courthouse and listen to the proceedings.

TLW: Do you see more tension between politicians and the judiciary, especially with the introduction of mandatory minimum sentences by the federal government?

Hogg: I think there will be some increased tension over the mandatory minimum sentences. The courts initially struck down mandatory minimum sentences because they said if they would be disproportionate to the most innocent possible offender, they were unconstitutional. The court has backed off from that. But I think we will have a new battle about mandatory minimum sentences if more of them become law. The court will have to determine how committed it is to individualized sentencing.

What has happened in section 15 is that the court keeps changing its mind as to what the doctrine is ... every few years, there is a significant change in the rules...

“

Peter Hogg

Blake, Cassels & Graydon

TLW: What do you see as some of the most significant developments in the 30 years of the Charter?

Hogg: I think you would have to
say the equality guarantee, as dif-
ficult as it has been to apply, has
had some very important conse-
quences. Abortion has been
decriminalized. Same-sex mar-
riage is also section 15. Those
seem to me to be two areas where
governments were reluctant to
act because of concerns over pub-
lic opinion—and courts took
over. I suspect that is very clear
with respect to gay and lesbian
rights. Most people have adapted
to a world where those rights are
acceptable and where there
should not be any discrimination.
That is one area. Freedom of
expression is another. The media
have had some important success
under freedom of expression. The
Grant case [Grant v. Torstar
Corp., 2009 SCC 61, [2009] 3
S.C.R. 640] in which the defence
of responsible journalism was
introduced into defamation pro-
ceedings, I think is a very import-
ant development.

TLW: One provision of the Charter that is rarely talked about anymore is the notwithstanding clause, which allows governments to override fundamental rights. Is it a tool that governments will use in the future?

Hogg: I don’t know the answer to that, but it was used by Quebec to re-enact language laws that the courts had struck down— language of signs. It seems to me that it was not a bad thing because for Quebec at that time, that was a fundamental public policy that had been, in effect, undermined by the court. You are probably not going to find many people of this opinion, but I think the notwithstanding clause is a desirable safeguard against overreach by the judges. It does mean that if a government feels sufficiently strongly about a particular decision, it can overcome it in the end. But I don’t know whether this will happen more in the next 30 years or not. It depends on whether the courts will continue to expand their use of section 7, [striking] down legislation to which governments are very strongly attached. If that were to happen, I could imagine a government using the notwithstanding clause. I do not object to the notwithstanding clause. A lot of lawyers, a lot of people do object to it. Trudeau didn’t want it.

TLW: In its 2009 decision in R v. Grant, the Supreme Court reformulated the section 24( 2) test for exclusion of evidence. Many defence lawyers, at least, have suggested that the pendulum has now swung too far back in favour of deference to police.

Hogg: Before Grant, I thought the pendulum had swung too far in favour of the exclusion of evidence. It had become almost an automatic exclusion for some categories of cases. So, I think all that the court has done in Grant, is just restore the judicial discretion in 24( 2) that they were supposed to have in the beginning.

TLW: The Charter of Rights is still a relatively new document. But will its impact be much more incremental in the next 30 years?

Hogg: I think a lot has been done in the last 30 years. But I think a lot more will be done in the next 30 years as well. People have become accustomed to there being a Charter of Rights. I started by complaining that it shifts too much power to judges and lawyers. But you have to recognize that nearly all civilized countries have a charter of rights with some degree of judicial review for their breach. So, we are really in the mainstream. So, I think that people will accept that this is part of our structure of government and, yes, it does give courts some powers they did not have before 1982. I expect that, over the next 30 years, perhaps there will be a gradual expansion of rights. At the same time, I don’t feel concerned about that. On balance, we have improved our country’s governance by having the Charter of Rights. n

To listen to excerpts
of the Peter Hogg
interview go to
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■ SUPREME COURT OF CANADA ■ Key Charter rulings, 1982–2012

Absolute liability offences with
possibility of imprisonment, found to
violate s. 7. A sign that the section would
not be limited to procedural fairness.

A section of the Alberta Judicature Act
that restricted reporting of divorce cases,
was found to violate s. 2(b). The court
described freedom of expression as of
fundamental importance to a democracy.

The right to full answer and defence
under s. 7 must also be balanced
against privacy interests and
equality guarantees. No single
principle is absolute.

Quebec legislation that prohibited
private health insurance was found to
violate s. 7 and the Quebec Charter, on
the grounds that it was arbitrary.

The federal government’s refusal to grant
an exemption to the CDSA for a safe-
injection site in Vancouver is found to be
arbitrary and a violation of s. 7 rights.

Reverse onus section of Narcotics
Control Act found to violate
presumption of innocence. S. 1 test to
establish reasonable limit, still in place.

The Crown duty to disclose includes
all “relevant” information in its
possession, as part of right to full
answer and defence.

The recognition of equality rights for one group, by legalizing same-sex marriage, cannot in itself, violate the equality rights of another group.

The right to collective bargaining,
does not mean that a particular form
of collective bargaining is protected,
said the Court in upholding an Ontario
law that governs agricultural workers.