HAS DEMOCRACY 'BEEN DULLED?'

No matter how you slice the cake, the Charter of Rights has become so
embedded in the Canadian psyche that it has been described as 'one of the
defining elements' of the national identity. On its 20th birthday, KIRK
MAKIN looks at whether Trudeau's 'people package' is cause for celebration

OTTAWA -- Debate ebbed and flowed about former prime minister Pierre
Trudeau's greatest legacy in the days after his death, but there was no
mistaking the runaway winner: the Charter of Rights and Freedoms.

The public has never forgotten the years of planning and scheming Mr.
Trudeau devoted to his beloved "People's Package" before he finally
battered down provincial resistance and delivered the Charter on April 17,
1982.

"People kept saying: 'He brought us the Charter of Rights,' " University of
Toronto political scientist Peter Russell said. "It was like Moses bringing
down the Ten Commandments. People see the Charter as somehow completing the
country."

Several hundred Charter judgments later, opinion is inevitably divided on
the merits of the Charter. But one thing is certain. It has forever changed
the way Canadians see themselves and the role of the state. A nation whose
defining trait was polite acquiescence has embraced the assertion of
individual rights.

The Charter ranks as one of the pinnacles of Canadian achievement,
according to Patrick Monahan, a professor at York University's Osgoode Hall
Law School. "Along with the Canada Health Act, the Charter is clearly
established as one of the major defining elements of the Canadian
identity," he said in an interview.

Why, despite dire warnings from skeptics that it would explode the
country's political underpinnings, did Canadians take so readily to the
concept of a Charter?

To John Dixon, president of the B.C. Civil Liberties Association, it grew
out of a perception that courts are more accessible and transparent than
the largely invisible world of politics.

"Government is inaccessible and enormously self-protective," said Mr.
Dixon, a former senior adviser to the federal Minister of Justice. "The
real political action involves small groups of mandarins working behind
closed doors. But look at the courts in contrast. The process is utterly
transparent and rational. Citizens get to hear the same evidence the judges
do, and when judges make a decision, they have to provide coherent reasons."

But that was light-years from how the opposing provincial premiers saw it
in 1981, when they warned Mr. Trudeau that he was forging a template for
judicial adventurism.

"We weren't just being ill-tempered," recalled Sterling Lyon, a former
Manitoba premier and retired appellate judge, in an interview. "It all goes
back to a grade-school understanding of the hierarchy of power in a
parliamentary system. I said time and again to the Prime Minister: 'You're
taking power from Parliament -- the representatives of the people -- and
giving it to nine people. What you are doing is importing an alien
appendage into our parliamentary system."

Mr. Trudeau, however, had a different background and world view. He dwelt
in a world of politics, yet his training was in law and the pursuit of
reason and logic.

Moreover, Mr. Trudeau had grown up in the 1950s in a province whose premier
-- Maurice Duplessis -- repeatedly trampled on minorities such as the
Jehovah's Witnesses by removing their right to proselytize.

"It was the Supreme Court of Canada that kept riding to the rescue of the
Jehovah's Witnesses and political dissenters," said University of Toronto
law professor Kent Roach, author of The Supreme Court on Trial. "People
tend to forget that there was a whole realm of judicial activism in the 1950s.

"I think that had to leave an effect on Mr. Trudeau. It seems to me that he
had a keen sense of the role that an independent judiciary can play. It all
fits into his belief in reason over passion. He reasoned through problems
and took unpopular stances. His personal style was perhaps more like a
judge than a politician."

The jury would remain out until 1984 on a single, overridingly important
question. Would the Supreme Court of Canada gut the Charter in the same way
it had the Bill of Rights in the 1970s, when the court ruled it lacked
constitutional authority and refused to use it to invalidate laws?

They delivered a resoundingly receptive response when the first Charter
appeals began to trickle in.

"It was a time of bright optimism," recalled Osgoode Hall Professor Allan
Hutchinson, no supporter of the Charter. "Their approach was swashbuckling."

"The first period was, quite emphatically, the most difficult," Mr. Justice
Frank Iacobucci of the Supreme Court of Canada said in an interview. "There
were no road maps or guidelines. This is not to say that the last 10 years
have been without their challenges, but the debt we owe those judges is
immense."

In this -- the first of three distinct stages -- the public remained
relatively upbeat and supportive as the courts swept aside a number of
pieces of musty legislation that ranked high on any law reformers' hit
list. Relegated to the dustbin, for example, was a seven-year, mandatory
minimum sentence for drug trafficking. So were a smattering of "reverse
onus" offences, which required a defendant to prove his own innocence.

Law schools were infused with heady debate about the Charter. Criticism
came mainly from political leftists, who nodded knowingly as corporations
won a few early victories. The courts excluded the right to strike and
collective bargaining from Charter protection, for example, and ruled
broadly that the Charter did not apply to workers involved in private
disputes with their employers.

There was a strange naivete to some rulings. In Regina v Askov, for
instance, the Supreme Court unwittingly caused tens of thousands of
criminal charges to be dropped for taking too long to come to trial. The
court rapidly backtracked.

The Charter was unexpectedly plunged into its second phase in the early
1990s -- a phase marked by sustained and strident attacks from police and a
cadre of editorialists and academics on the conservative right. Judges were
derided as social engineers or syrupy liberals bent on usurping the power
of elected legislators.

The Reform Party carried the debate into Parliament, mocking judicial
claims to impartiality and insisting on a procedure to question judges
about their views before their appointment to the bench.

University of Calgary political scientists Ted Morton and Rainer Knopff
summed it all up in a derisive label -- the Court Party -- to describe a
judiciary they felt had hijacked and politicized social policy. They
alleged that the Court Party was a loosely knit group of civil libertarians
and feminists.

"I didn't see the right-wing, populist attack coming," confessed Prof.
Russell, the dean of Canadian court watchers.

To be sure, groups classed as being in the Court Party made regular and
successful appearances in the Supreme Court. In one notable case --
Operation Dismantle -- a total of 25 organizations and unions mounted legal
interventions. The court, however, not only welcomed a broad range of
arguments, it actively encouraged them.

"Social-science data and intervenors played an absolutely essential role --
especially in the beginning -- and the court places far more reliance on
academic writing than used to be the case," Judge Iacobucci said.

Prof. Hutchinson said the judiciary was, nonetheless, shocked and somewhat
befuddled by the abuse suddenly being heaped upon it. "They said: 'Look,
you were all over us for not doing anything under the Bill of Rights. Now
we do something, and you're all over us for that too.' The court entered a
period of hesitation, as if they were thinking that maybe they had pushed
the boat out too far."

With the recognition that their credibility was under siege, Supreme Court
judges began to open their chambers to the press and made time in their
punishing schedules for numerous speeches.

Over the past couple of years, the tide has turned. The Canadian Alliance,
consumed by political infighting and doubtless aware of surveys showing
consistent public support for the Supreme Court and the Charter, has gone
silent.

"Public-opinion research shows the Charter is extremely popular in all
regions of Canada, including Quebec," Prof. Monahan said. "It is a
remarkable story in a country where you rarely see that kind of consensus."

The third stage of the Charter era now features occasional, bold rulings
that upsets powers-that-be, but the Supreme Court has a strategic eye
firmly trained on Parliament and its own public image. It has seized on a
catch phrase that denotes its comradely approach to the legislatures -- a
relationship it habitually refers to as "a dialogue."

"I do perceive this court as becoming somewhat more conservative,"
acknowledged retired chief justice Antonio Lamer. "A lot of people might
agree that the court should be more deferential than it has been in the past."

Prof. Russell said these regular genuflections toward Parliament have only
marginally appeased the right. In the end, he said, nobody is particularly
happy. "The moderate nature of the Supreme Court has not pleased the
Charterphiles, but it has been absolutely infuriating to the Charterphobes."

According to legal scholar James B. Kelly, the court's conservative turn
actually began in 1993. It continued to favour Charter challengers in about
34 per cent of the cases it heard, but the number of statutes struck down
began to decrease.

The court instead took to attacking decisions by public officials --
decisions that tend to be case-specific, less controversial and unlikely to
have broad ramifications.

"The overall trend in the court's jurisprudence suggests that the court has
settled into a moderately activist approach to the Charter," Prof. Kelly
concluded in a paper.

In another recent paper, Department of Justice lawyer Peter Brauti noted
that the Supreme Court has grown timid about evidence obtained
unconstitutionally. Legislatures seem quite willing to enact legislation
that is "at odds" with previous court rulings, he said.

So much for the dialogue.

There is, however, at least one dissenting voice. "When I see the court
being selective, I don't think of that as the court running scared," Mr.
Dixon said. "They just don't want to needlessly squander their credibility."

Judicial patterns spanning decades suggest that over the long haul, courts
tend to veer back and forth across the centre line of public opinion,
self-correcting their course when public reaction suggests they have gone
too far.

"If a court continually renders decisions that for one reason or another
are not acceptable to the majority of the public, it puts its legitimacy on
the line," Judge Iacobucci said. "At the same time, if a judge tries to
anticipate what the public wants on a given question, then we are lost.

"By definition, these cases are extremely difficult," he said. "You can
only hope that even with the very unpopular decisions, the reasonable
citizen will say: 'I may not agree with it, but I can't say it was
arbitrary or wrongheaded.' "

After 20 years in the eye of the storm, judges seem increasingly at ease.
"If I waited to get accolades, I would despair," Madam Justice Louise
Arbour said in an interview. "To me, it really doesn't matter. I would only
worry if I felt the institution was really under attack, was losing ground,
and that the quality and soundness of its work was not coming across."

Judge Iacobucci said that while he is satisfied with the first 20 years of
Charter development, one intangible aspect of the new era troubles him. "I
share the concern that the more we have rights and privileges and
entitlements, the more we lose sight of obligations and duty," he said. "We
must keep a moral appreciation for our responsibilities."

But Prof. Hutchinson said it is too late to start worrying; our collective
sense of responsibilities has already decayed. "Our democratic instincts
have been dulled by the Charter. By putting in place the idea that the
courts are guardians of democracy, people's participation in the democratic
process has atrophied. Groups now think that if you want to be involved in
the democratic process, get a lawyer."

Whatever the case, the Charter is moving into new terrain. A good deal of
the early Charter spadework -- particularly in the criminal law area -- is
done. The judiciary faces new and taxing challenges.

The courts will be called on, for example, to interpret the synergistic
effects of one Charter section on another. The effects of technology on
human biology, privacy, commerce and borders are certain to spawn new crops
of cases.

"The Charter is a work in progress," Judge Iacobucci said. "This is a
birthday party -- not a final report card."

In The Series

Saturday: 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.

Yesterday: The Supreme Court judges and their so-called grab for power.

Today: Is the Charter Pierre Trudeau's greatest gift to Canadians?