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Ten Court Rulings That Cemented Rights And Freedoms
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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