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
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