Pubdate: Sat, 06 Apr 2002 Source: Globe and Mail (Canada) Page: F4 Copyright: 2002, The Globe and Mail Company Contact: http://www.globeandmail.ca/ Details: http://www.mapinc.org/media/168 Author: Kirk Makin Series: Part 1 Of 4 RIGHTS GONE WRONG? Judging The Charter It's Been 20 Turbulent Years Since Pierre Trudeau Gave The Country The Charter Of Rights And Freedoms. In This First Of A Four-Part Series, Kirk Makin Looks At Who Has Scored Major Victories And Those Who Have Come Away Empty-Handed. And He Finds That The Ascendancy Of Individual And Minority Rights Has Raised Concerns Over The Fate Of The Democratic Majority. 'I Guess The Charter Is A Little Bit Like Doctors And Hospitals. You Don't Like Them - Until You Need Them,' Says Supreme Court Judge Jack Major OTTAWA -- Life could scarcely get more bleak for a Supreme Court of Canada judge than it did once the court ordered a new trial for Michael Feeney in the gory murder of Frank Boyle. Even though bloody clothes were strewn about a trailer where Feeney had been sleeping, the court ruled in 1997 that it was unconstitutional for police to have gone in without a valid warrant. All hell broke loose. Police and politicians screamed and editorial writers practically foamed at the mouth. Public faith in the Charter of Rights and Freedoms was shaken. "People wondered what kind of madhouse we were running up here," Mr. Justice Jack Major recalled in an interview. "I knew the ruling would be unpopular. It seemed to be an idiotic decision -- there was blood all over the place. But the fact is, we were talking about entering a private residence without a warrant." Nobody seems to appreciate fundamental guarantees until they are the ones being mistreated, Judge Major said. "I guess the Charter is a little bit like doctors and hospitals. You don't like them -- until you need them." Since coming into force 20 years ago, the Charter -- its official birthday is April 17, 1982 -- has had a profound effect on Canadian lives. And whether good or bad, there can be little doubt that it ranks as former prime minister Pierre Trudeau's greatest legacy. A mind-boggling number of issues and cases have been litigated, including mandatory retirement, marijuana laws, prostitution, missile testing and tobacco advertising bans. Judgments have even covered a symbolic span from conception to death: The courts struck down not only abortion laws, but also halted the extradition of Canadians to face probable execution abroad. Those invoking Charter protections include the most powerful lobby groups and the most eccentric cranks; natives and judges; Mafia kingpins and murderers. In 1984, when the first Charter appeals began to trickle in, Brian Dickson, then chief justice, described it as a "living tree" that would be nurtured in order to shield individuals and minorities from the tyranny of the majority. Since then, some argue, the Charter has nurtured individual rights so successfully that democracy has suffered, with the balance of power moving from Parliament to the nine judges who make up the Supreme Court. Michael Feeney's victory turned out to be short-lived -- he was convicted of murder at his retrial -- but the episode served to exacerbate a public perception that the biggest winners to emerge after 20 years of Charter litigation were the criminally accused. Others, however, have compiled their own record of triumph. Women and aboriginal people have won many favourable rulings and, after some initial disappointments, so has the gay and lesbian community. At the other extreme, the list of losers includes groups that hoped to force profound changes in governmental policy -- from dismantling the cruise missile testing program to asserting universal social programs. Despite a handful of recent gains, organized labour has also had few triumphs to show. But it is those who lack the money to fight expensive court battles whose chances are slimmest. "We see the usual losers -- the disadvantaged," said Allan Hutchinson, a professor at York University's Osgoode Hall Law School. "What has the Charter done for the homeless or the dispossessed?" Still, it is the tug of war between police and accused criminals that has stolen centre stage in the Charter era. A succession of rulings have established that: Videotaped police interrogations are almost obligatory. Suspects must be offered a meaningful right to obtain legal counsel. Searches conducted without a proper warrants are likely to be excluded. Physical evidence obtained by violating a person's bodily integrity is likely to be thrown out. Police and prosecutors must disclose evidence relevant to the defence. Former chief justice Antonio Lamer said the error that critics make is looking at these rulings as favouring criminals. "People incorrectly perceive that the Charter is there to protect criminals. It isn't. It is there to protect the innocent. Anytime we cut corners a little bit, we send innocent people to jail." And for all the protesting that the courts have handcuffed police, Osgoode Hall law professor Patrick Monahan said a new generation of police and prosecutors has grown up accepting Charter rights. "Police and Crowns may lament the significant cases they have lost at the Supreme Court, but they have been able to adjust to the new reality of the Charter," Monahan said. "I think they generally want clear rules to apply. The overall effect has not made their lives too difficult." As for the public, Madam Justice Louise Arbour of the Supreme Court said Canada's recent experience with wrongful convictions has increasingly muted opposition to these rulings. "I think it has created a very sobering environment in which people understand the importance of doing things carefully to avoid errors," she said. Ironically, the institution that likely perceives itself as the biggest Charter loser is arguably its biggest winner: government. "The typical government posture toward the Charter is one of muted resentment and irritation -- and sometimes exasperation," said John Dixon, a civil libertarian and former senior policy adviser to the federal Minister of Justice. "They see the Charter as an affront to the practical governance of the country; as something you have to fight against. The only direction I ever saw given to government litigators was: 'Win.' " But the Charter has also provided politicians with a marvellous opportunity to pass questionable laws involving touchy political issues -- such as the federal child pornography law that keeps ending up in the courts. Politicians are able to appease the electorate, all the while knowing the courts will use the Charter to fix them, if necessary. In reality, Monahan said, the federal government has actually lost very few battles to uphold its legislation over the past five years. And those it lost involved mainly the conduct of public officials, rather than being direct attacks on legislation. Dixon said that, in general, groups have benefited from the Charter far more than individuals have. Of these, none has been a bigger winner than aboriginal people. "Aboriginals have made great strides," he said. "The courts have been their greatest friends." The Supreme Court signalled in such landmark cases as Sparrow (1990), which found a right to fish for food, social and ceremonial purposes. The 1997 Delgamuukw decision said the courts would give credence to oral evidence involving storytelling where physical evidence of a treaty is lacking. But while legal academics view aboriginal litigation as having produced some of the court's finest rulings, it has also led to a couple of the most ignominious. At the top of this list is a 1999 ruling known as Marshall Two. It followed just weeks after the original Donald Marshall decision -- which affirmed the right of New Brunswick's Mi'kmaq Indians to catch eel for sustenance -- infuriated white fishermen and touched off a flurry of violence. Marshall Two stated that the ruling did not apply to other resources and that governments can limit the fishing right if they have sound justification for doing so. Many observers viewed Marshall Two as an abject retreat. "Marshall Two was the first time the court showed that it was losing its nerve," said Peter Russell, a University of Toronto law professor. "It was an inexcusable response to criticism in some pretty narrow corners. I don't think judges should sit there trying to calibrate their decisions the way politicians do, trying to make sure they will be popular. If they start doing that, they might as well hand in their judge cards. They are not there to please." When it comes to succeeding or failing in a Charter challenge, the quality of lawyering and the facts of a particular test case can be instrumental. As a result, the existence of "intervenor" groups such as the Women's Legal Education and Action Fund can be crucial in putting compelling arguments before judges. LEAF has, for instance,strongly influenced the use of third-party records in sexual-assault cases by showing the implications for women's rights to privacy and security. Yet, strong lawyering alone cannot win the day if the court is reluctant to tread too far, as it was in the emotion-laden cases of Robert Latimer and Sue Rodriguez. The court was strongly criticized in some quarters for failing to show bold leadership in reducing Latimer's life sentence for killing his disabled child. It was again vilified for refusing Rodriguez's request to let caregivers legally assist her in ending her life as her incapacitation from Lou Gehrig's disease became unbearable. "Sometimes the court says we're not quite ready to decide," Russell said in defence of the Rodriguez ruling. "I thought it was very wise." For the disabled -- another group that has not done especially well under the Charter -- simply maintaining the status quo in cases like Latimer and Rodriguez often amounts to a victory of sorts. Two specialists in human-rights law -- David Baker and Marvin Huberman -- said the disabled have benefited mainly from a series of equality-rights rulings (Section 15) that require minorities to be given fair and relevant testing before they can be barred from a job or activity. They also said the Supreme Court has helped equality litigants by opening the door wide for challenges to the way bureaucrats administer regulations in specific instances. "This explains part of the backlash against judicial activism," Huberman said. "There is less protection for some of these bureaucrats. The Charter has had a huge impact in terms of forcing public officials to justify their conduct." The biggest problem for equality litigants remains money. "The consequence of losing -- paying costs -- discourages people," Huberman said. "In a constitutional case, it takes $50,000 to $100,000 just to go to the first level of court." Mr. Justice Frank Iacobucci of the Supreme Court conceded in an interview that one of his greatest concerns about the Charter is that it is far easier for corporations to pursue cases than it is for "the little people." The equality section is very much a work in progress. Judges privately identify it as being almost frighteningly open-ended. For those litigants who can afford to get a challenge into court, the bottom line is to show that a discriminatory measure has caused meaningful damage to their dignity. In two recent cases -- known as Law and Granovsky -- the Supreme Court drew the line at ordering pension and disability benefits for the claimants. It said the discrimination involved was marginal and the government had taken reasonable efforts steps to structure the plans fairly. Initially, the court focused on the disadvantage of the group involved in a challenge. Two years ago, in the Law case, it refocused on the harm done to the dignity of a reasonable person in the litigant's position. The plaintiff, Nancy Law, was disputing a federal pension plan provision that denied her survivor benefits after her husband died because she was under 30. The court ruled that it was a clear case of age discrimination. But Law did not belong to a historically disadvantaged minority, nor did the measure attack her dignity as a person. So she didn't get the money. "That is a really subjective issue that gives the court a great deal of discretion," Baker said. He said that by dramatically plunging forward into this new area of interpretation, the court has left considerable confusion. "The court didn't have to go that far," he said. "I can't advise people as clearly now as to what a court is going to find discriminatory." Huberman said courts consider not just the adverse impact on the person who claims discrimination, but the motivation of the discriminator. This leaves it open to government agencies to successfully justify discrimination on the grounds that they needed to save money. "The upshot is that succeeding under the equality section is going to be more difficult in future," Huberman said. Baker said the Law case is a prime example of how important it is to have legal intervenors make arguments in the Supreme Court. (There were few in the Law case.) "The assumption was that the case wasn't going to completely transform Section 15 -- but that is just what it turned out to do," he said. "You can be blind-sided by a case that winds its way very slowly through the courts until, at the end of the day, you are stuck with an adverse decision," Huberman added. "When done right, an intervenor brings a unique perspective to a case." Baker said many future cases will target programs that exclude certain people, such as those "where the government cuts back the social safety net in a way that discriminates." One such case currently before the Supreme Court -- Louise Gosselin v Quebec -- is expected to reveal how far the court will go in ordering governments to provide welfare benefits. Depending on its outcome, Monahan said, other major challenges may follow involving inaccessibility to legal aid funding and supposedly universal health-care programs. Russell said that while there have been some robust equality-rights rulings, they tend to be followed by harsh criticism. The court then inevitably draws in its horns for a while. "It all feeds back into the appointment of judges," he said. "Governments become careful about not appointing flaming egalitarian judges, so the court becomes stuffed with slightly left and slightly right moderates. A court like that is not going to shake things up very much." The political left originally had great concerns about the Charter, viewing business interests -- with their great resources to litigate -- as being likely to win big. Sure enough, corporations did win some early battles, largely at the expense of labour. In addition, corporations triumphed from the RJR MacDonald case, which recognized them as having a right to free expression. The court sent out shock waves by striking down federal laws that restricted tobacco advertising. At the same time, corporations have not succeeded in seeing property rights protected under the Charter, enabling companies to hamstring government attempts to regulate the use of land and resources. "I think the corporations have been smart," Hutchinson said. "They haven't tried to drive home their advantage too far." A handful of rulings recently may also signal a change in the fortunes of the labour movement. In recent months, the Supreme Court has recognized secondary picketing -- that is, the right of workers to picket locations that have a peripheral connection to the target of strike. It has also struck down an Ontario law that prevented agricultural workers from organizing. Lawyer Morris Manning said the rulings signal a sharp change from earlier labour defeats, which included the exclusion of the right to strike and collective bargaining from Charter protection. "When and why the court will find that it should or should not enter into these complex social, political and economic issues is still a mystery," he said. Monahan said another fear on the left -- that environmental regulations would be struck down or impaired -- has not come to be. "The Charter hasn't enhanced environmental interests, but it hasn't weakened them either." In the area of free speech and expression, the court has not adopted a firm or particularly predictable approach. "They have done virtually nothing in an area where free speech is most in peril -- economic concentration of private ownership of the media," Russell commented. "The issues where the Charter has made a difference are really marginal." Monahan said the greatest benefit the country may have gained from the Charter is an intangible one. He said its mere existence causes governments to take Charter protections into serious account when they create legislation. "We just saw it in the debate over the Anti-Terrorism Act," he said. "Everybody benefits when governments take the Charter seriously." A Charter primer It is a strange anomaly of the Charter of Rights and Freedoms that it was created and championed by a consummate politician -- former prime minister Pierre Trudeau -- yet is premised on a basic mistrust of politicians. The Charter, part of the Canadian Constitution which was repatriated to Canada on April, 17, 1982 thanks to Trudeau, empowers Canadians to challenge any law, regulation or bureaucratic ruling created by government - -- with a decision on its validity being left up to a judge. At the same time, it was crafted with a careful series of checks and balances that allow governments to defend their legislation and decision. The pivotal one states that in any case where a judge has found a constitutional violation, government lawyers are then allowed to demonstrate why they believe the breach is justifiable "in a free and democratic society." The legal tug of war that ensues when this section (Section 1) is invoked can include testimony from expert witnesses, academic studies, opinion polls or the records of parliamentary debates. If the government fails to justify a law, other sections provide legal remedies that range from awarding legal costs to throwing out evidence whose admission would tarnish the face of justice. Some of the key rights protected under the Charter are: Legal rights, including the right to counsel and to be free of arbitrary imprisonment or unreasonable search and seizure. A broadly worded clause (Section 7), which guarantees the right to life, liberty and security of the person. Guarantees of fundamental freedoms such as free speech, expression, association and religion. Equality guarantees (Section 15), which protect against unfair discrimination. It includes an exemption for affirmative action programs that discriminate in order to ameliorate historical inequalities. Language rights, affirming the equality of French and English. The Charter at 20: Who's won and who's lost 1. Hunter v Southam (1984): The case involved a search of the Edmonton Journal by Combines Investigation Branch agents looking for evidence relating to the rapid expansion of the Southam newspaper chain. The court struck down the CIB's search powers as being unreasonable, and signalled that it would take the Charter very seriously and give its protections a broad interpretation. 2. R v Oakes (1984): The case involved a legal anomaly requiring defendants in narcotics cases to prove that they did not intend to traffic, the reverse of the usual onus on the Crown. In its ruling, the court laid out the building blocks of Charter interpretation -- a series of tests aimed at determining whether the government could justify an unconstitutional law because there was a pressing and substantial need for it, and whether the government had used fair and proportionate means to achieve its goal. 3. R v Big M Drug Mart (1985): The court struck down the federal Lord's Day Act in its first freedom of religion case, allowing stores to open on Sunday. 4. B.C. Motor Vehicle Act Reference (1985): The court ruled that when interpreting the Charter, judges would not be confined to deciding whether procedures were fair. They could go much further, deciding on the fairness of the actual substantive content of a law. The case arose because of a B.C. provision imposing mandatory penalties whether or not a person was aware they were driving with an invalid licence. 5. Dolphin Delivery (1985): Dolphin was a Vancouver courier company making deliveries on behalf of another company whose workers were locked out. The union involved wanted to picket Dolphin. The court ruled that while the Charter would henceforth apply to the common law, it would not apply to disputes between private parties. 6. Operation Dismantle (1985): The Charter guarantees are broad enough to include scrutinizing cabinet decisions -- although not in this particular case, which involved an attempt to stop the federal government from co-operating with the United States on cruise missile testing over Canada. 7. Singh (1985): Satnam Singh was a refugee from India whose claim for refugee status on the basis that he was fleeing persecution had been rejected. The court extended the protection of the Charter to non-citizens such as Singh, and mandated that refugees had a right to full, oral hearings. 8. Andrews v Law Society of B.C. (1989): In its first interpretation of equality rights, the Supreme Court said courts would weigh both the purpose and effect of discriminatory legislation. The case involved Mark Andrews, a lawyer from the United Kingdom who objected to a Law Society of B.C. rule that required him to be a Canadian citizen before he could practise law. The Supreme Court ruled in his favour. 9. R v Morgentaler, Scott and Smoling (1989): Far from being a major affirmation of women's rights, the majority struck down the abortion law purely because hospital abortion procedures were cumbersome and unfair. Still, it had a massive social impact and the law has never been replaced. 10. R v Stinchcombe (1990): The ruling created a revolution in the way criminal cases are handled, obligating police and prosecutors to henceforth hand over relevant evidence to the accused well before trial. 11. R v Askov (1990): In setting an outside limit for the amount of time a case can go to trial, the ruling led to tens of thousands of criminal charges being dropped in Ontario. The court later retreated after the implications of its ruling became clear. 12. Schacter v Canada: (1992) A biological parent objected to a federal civil service provision granting him less parental leave than an adoptive parent could have. The court took the bold, new step of ruling that judges can "read in" new provisions to an existing law in order to render them constitutional. It simply "read in" an equivalent 15-week leave for biological parents. 13. Dagenais v CBC (1994): The case involved a publication ban that prevented the CBC from broadcasting a dramatic movie, The Boys of St. Vincent,on the grounds that it could prejudice the upcoming sexual abuse trials of several Roman Catholic priests. In ruling in favour of the CBC, the court stated that one constitutional right does not automatically trump another. It was widely seen as a major victory for free press rights. 14. R v Butler (1995): The case involved a small Manitoba store that rented X-rated videos. The ruling redefined obscenity to focus on the depiction of sexual acts involving the use of children, violence, degradation or dehumanization. 15. R v Keegstra (1996): A former teacher, James Keegstra, was prosecuted for willfully promoting racial hatred against Jews. In upholding his conviction, the Supreme Court's bottom line was that some categories of free speech are scarcely worth protecting. 16. Remuneration of Judges (1997): Relying on "unwritten constitutional principles" that protect judicial independence, the court demanded the creation of salary commissions in each province to determine judges' remuneration. 17. Vriend v Alberta (1998): Delwin Vriend was fired by a small Christian college in Edmonton. He was prevented from using the Alberta Human Rights Commission to fight his firing because it did not include gays as a protected group. The Supreme Court "read in" gay rights to the list of rights protected under Alberta Human Rights legislation. 18. Secession Reference (1998): The court managed to reach a powerful, unanimous ruling that if Quebec wished to secede after a fair referendum on the question, the rest of Canada would be obliged to negotiate terms of secession. 19. M v H (1999): The case involved an estranged lesbian couple and the fact that Ontario family law provisions exclude gays and homosexuals. The court ruled that by excluding these groups from support provisions, Ontario had continued a history of discrimination that undermined their human dignity. 20. R v Burns and Rafay (2001): Effectively reversing an earlier position, the court virtually banned the extradition of Canadians to face possible execution abroad. In the Series Today: Winners and losers who have emerged after hundreds and hundreds of challenges. Monday: Anatomy of a Charter case. A small independent bookstore in B.C.takes on the government. Tuesday: The Supreme Court judges and their so-called grab for power. Wednesday: Is the Charter Trudeau's greatest gift to Canadians? - --- MAP posted-by: Beth