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?