Pubdate: Thu, 12 Apr 2007 Source: Globe and Mail (Canada) Copyright: 2007, The Globe and Mail Company Contact: http://www.globeandmail.ca/ Details: http://www.mapinc.org/media/168 Author: Kirk Makin, Justice Reporter Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada) Bookmark: http://www.mapinc.org/decrim.htm (Decrim/Legalization) TEN COURT RULINGS THAT CEMENTED RIGHTS AND FREEDOMS Panel Selects Most Influential Decisions A jury of the country's foremost constitutional experts is in -- and its verdict for the most influential Charter ruling of the past 25 years is a 1986 case, Regina v. Oakes, which provided a crucial blueprint for all future Charter interpretation. The runner-up was a 1985 ruling known as the B.C. Motor Vehicle reference, which greatly expanded the power of judges to interpret the Charter guarantee of life, liberty and security of the person. The unique vote brought together a panel of 10 highly respected experts who debated and voted electronically. Their preferences were weighted and tabulated to come up with a master list. The panel members will argue their individual choices today at a major conference in Toronto marking the 25th anniversary of the Charter. Eight of the 10 top rulings were clustered in a period from 1985 to 1991, during which the Supreme Court of Canada first began to grapple with the Charter. "Those early cases were just so dominant in our collective thinking about the Charter that they claimed pride of place on the list," said a key organizer, Prof. Jamie Cameron of York University's Osgoode Hall Law School. In the Oakes case, the Supreme Court struck down a "reverse onus" provision that forced defendants to prove that they did not intend to traffic marijuana found in their possession. "Without question, Oakes has been the most frequently cited and most dominant decision in the first 25 years of Charter history," the panel said. In measuring whether a Charter breach can be justified by the government, the Oakes ruling said the offending law must be "proportionate" and "rationally connected" to its ultimate goal, and it must also breach the right as little as possible. In descending order of importance, the other cases were: 2. Reference re B.C. Motor Vehicle Act, 1985: Using the Charter's Section 7 guarantee of life, liberty and security of the person, the Supreme Court struck down a law under which anyone caught driving with a suspended licence was subject to a jail term. The panel observed that ruling opened up "the Charter's most abstract and potentially far-reaching guarantee" far beyond what those who created the Charter had ever intended. They said that the ruling paved the way for the court later to invalidate Criminal Code provisions restricting abortion and constructive murder. 3. Hunter v. Southam Inc., 1984. One of the Supreme Court's first Charter rulings, it found that warrantless searches were unreasonable. By signalling that judges would closely inquire into the intentions of legislators, the experts said the ruling "sent the message that the court intended to take its Charter mandate seriously." 4. Regina v. Morgentaler, 1988: The experts called it "a blockbuster . . . a significant Supreme Court foray into a highly controversial moral, ethical and political debate about women's reproductive rights and abortion." They said that by focusing on procedural flaws in the law that restricted access to abortions, the court was able to leave room for Parliament to re-enact measures that would conform with the Charter. "By virtue of Parliament's inability to enact successor legislation, abortion has effectively been legalized in Canada," they added. 5. Andrews v. Law Society of B.C., 1989: In striking down a requirement that lawyers in British Columbia be Canadian citizens, the court "definitively rejected a formal definition of equality based on same treatment, in favour of a conception which would focus on remedies for discrimination." 6. Regina v. Stinchcombe, 1991: It cemented the right of an accused person to have disclosure of the case against him include all relevant information in the Crown's possession. 7. Regina v. Sparrow, 1990: An aboriginal fishing case, the ruling "articulated a dynamic, progressive and expansive approach to aboriginal rights," the experts said. 8. Vriend v. Alberta, 1998: By adding sexual orientation to a list of protections in the Alberta human rights code, it set the stage for a series of pro-gay-rights rulings. 9. Ford v. Quebec, 1988: The ruling struck down Quebec legislation prohibiting English on outdoor advertising, which the experts called "an important test of the Supreme Court's resolve." 10. Law v. Canada, 1999: In defining discrimination under the Charter's equality guarantee, the ruling established "human dignity" as the guiding concept at the same time as it added controversial new layers of complexity to equality claims. The experts Ten of the most experienced Charter of Rights experts in the country collaborated to produce a list of the most important Charter rulings of the past 25 years. They were: Prof. Jamie Cameron, Osgoode Hall Law School, York University Peter Hogg, lawyer, Blake Cassels & Graydon LLP Roslyn Levine, regional director, federal Department of Justice Patrick Monahan, Dean of Osgoode Hall Law School Prof. David Paccioco, University of Ottawa faculty of law Mr. Justice Robert Richards, Saskatchewan Court of Appeal Mr. Justice Marc Rosenberg, Ontario Court of Appeal Prof. Colleen Sheppard, McGill University faculty of law Prof. Lorne Sossin, associate dean, University of Toronto faculty of law Madam Justice Katherine Swinton, Ontario Superior Court - --- MAP posted-by: Beth Wehrman