LAW

A vast array of fundamental freedoms

Ken MacQueen,John Barber April 22 1985
LAW

A vast array of fundamental freedoms

Ken MacQueen,John Barber April 22 1985

A vast array of fundamental freedoms

LAW

By Ken MacQueen and John Barber

The constitutional debate preoccupying Ottawa was likely far from Joseph Cook’s mind as he eased his girlfriend’s Camaro to a stop near Prince Andrew High School in Dartmouth, N.S. Indeed, when city police pushed through the crowd of teenagers who had clustered around his car, the 21-year-old had more immediate concerns. The reason: he was carrying 21 individually wrapped pieces of hashish in the crotch of his pants. He was later convicted of possession of a narcotic for the purpose of trafficking and sentenced to three months in jail. But the timing of Cook’s arrest, in October, 1981, was fortuitous for him. In November of that year Ottawa and nine provinces finally agreed to bring the Constitution—including a historic Charter of Rights and Freedoms—home from Britain. And in March, 1983, the appeals division of the Nova Scotia Supreme Court ruled that the law under which Cook had been convicted violated the Charter. In a new trial he pleaded guilty to simple possession. And instead of a jail term he was fined $250.

Sweeping: Three years ago this week Queen Elizabeth II braved an Ottawa rainstorm to surrender British control of Canadian constitutional affairs and to proclaim the new Charter. With that, she established unprecedented protec-

tion for a sweeping array of fundamental freedoms and rights. Even before the provisions dealing with so-called equality rights became effective this week, Canadians had launched an estimated 1,750 Charter-based court cases. Despite then-prime minister Pierre Trudeau’s prediction that “the day-to-day lives of Canadians” would change, the process has yet to produce any startling reforms. Said Graham Garton, a federal justice department lawyer who monitors Charter cases: “It is pretty difficult to think of a case that hits people where they live.”

Still, many legal experts say that the process has created a new mood of selfconfidence. Wrote Joseph Magnet, a University of Ottawa law professor: “Apart from criminal justice, Charterbased decisions have hacked away at the shackles stifling our sense of individual autonomy, causing a healthy skepticism of power to sprout in the Canadian personality.”

And although its meaning is still obscured by more than a thousand conflicting challenges and judgments, according to James MacPherson, director of the Saskatchewan justice department’s constitutional law branch, it stands as “the most significant legal development in the history of Canada.” For his part, Toronto civil rights lawyer Clayton Ruby declared, “It’s a great time to be a lawyer.”

Many of the Charter-based argu-

ments that courts have heard so far were desperate attempts by accused people to escape almost certain conviction on serious charges. Others, including the contention of two Alberta convicts that they had a constitutional right to toothpaste, toothbushes and incell showers while incarcerated, bordered on the frivolous. And despite the success achieved by some of the more important challenges in lower courts, few have emerged from the appeal process for a definitive judgment in the Supreme Court of Canada. So far, the high court has delivered only four significant interpretations of the Charter.

Challenged: But those decisions have forced fundamental changes in language laws, the rights of refugees, mobility rights and powers of search and seizure. As well, there are about 50 appeals that the Supreme Court is about to hear. Among other things, the results will determine whether Canadians will be able to shop freely on Sundays and whether the cabinet decision to allow the United States to test the low-flying cruise missile over northern Canada can be challenged. The courts may also decide whether companies are obliged to hire and promote specific quotas of women, blacks, bilingual people and members of other groups to meet the requirements of the Charter’s “affirmative action” provisions.

Already, the Supreme Court has invoked the Charter’s full power when

necessary. Last July the court rendered its most dramatic Charter verdict when it struck down a controversial portion of Quebec’s language law, Bill 101, which restricted the province’s English schools to children of Quebecers educated in the province. The court found that the law violated Section 23 of the Charter, which guarantees an education in either English or French anywhere in the country where numbers warrant.

Earlier this month some of the Supreme Court justices cited the Charter when they ruled that aliens claiming refugee status cannot be deported without having the opportunity to testify at an Immigration Appeal Board hearing—a decision that will affect about 20,000 people. And in 1984 the court decided that the federal Combines Investigation Commission conducted an illegal search in the offices of the Edmonton Journal in 1983, violating the Charter’s guarantee that “everyone has the right to be secure against unreasonable search and seizure.” Said University of Calgary law professor Christopher Levy: “This was one of the biggest Charter cases. The decision tells us that they will use their powers under the Charter, that they are not going to emasculate it like they did the old Bill of Rights.”

Ruling: Still, the court has also served notice that it will only invoke the Charter when necessary. Last month the justices avoided ruling on the Charter’s freedom of religion provisions when they agreed that Nova Scotia lawyer Roseanne Skoke-Graham and five fellow parishioners of the Roman Catholic Church in Stellarton, N.S., were not guilty of creating a disturbance when they knelt to take communion in violation of the parish rule. Skoke-Graham had argued that the church ban on kneeling contravened her religious freedom, but the court decided merely that her act did not constitute a disturbance.

The most important religious freedom case yet heard by the Supreme Court grew out of even stranger circumstances. In 1983 the owners of Calgary’s Big M Drug Mart argued in court that the provincial Lord’s Day Act—which they had contravened by opening their store on Sundays—violated their freedom of religion because it gave special importance to the Christian sabbath. The Alberta Court of Appeal agreed, and the province appealed the decision to the Supreme Court last spring. Although the court has not yet issued its ruling, the current state of the law has encouraged most of Alberta’s malls and major department stores to operate seven days a week.

Among lower courts, many of the earliest Charter judgments resulted from criminal cases. And although judges have been conservative in applying the Charter in such matters, some of their

decisions have raised concern that the new Constitution is, a criminal’s best friend. In Manitoba one of the first Charter rulings freed a man charged with robbery and breaking and entering because the judge said that a 161-day delay between the initial charge and the arrest violated his right to be tried within a “reasonable time.” Other courts have refused to admit evidence seized by the RCMP with the aid of sweeping writs of assistance. And several have issued

“reverse onus” rulings similar to the one that saved Joseph Cook. In those cases the judges struck down the Narcotic Control Act section that requires some people caught with illegal drugs to prove they were not selling them as well.

More disturbing is the possibility that the Charter may prove to be a refuge from prosecution under the so-called hate laws and other laws like them. Ernst Zundel of Toronto is appealing his recent conviction of falsifying history on the grounds that he has a fundamental right to freedom of expression under

the Charter. For his part, prominent Toronto criminal lawyer Morris Manning said that Zundel stands a good chance of winning (page 56). Declared Manning: “If he cannot say what he wants about history, then freedom of speech is meaningless.” Alternatively, the Zundel case could set a valuable precedent in interpreting the Charter’s definition of a “reasonable limit” on the freedoms it is designed to protect.

It will probably be years before the Supreme Court rules on the constitutionality of hate laws, although numerous Charter judgments in lower courts have already upheld the Charter’s bias in favor of the individual as opposed to the state. For one, the Alberta Court of Queen’s Bench struck down sections of the Canada Elections Act which were designed to limit election advertising by organizations not directly affiliated with political parties. Alan Hunter, acting as counsel for the National Citizen’s Coalition, argued that the law, in effect, restricted freedom of speech.

Scrambled: At the same time, the state has shown itself quick to circumvent judicial decisions based on the Charter which it finds unpalatable. Federal Justice Minister John Crosbie scrambled earlier this month to introduce temporary revisions to the Customs Tariff Act after the Federal Appeal Court ruled that the act was too vague in its description of obscenity, a ruling that temporarily opened the border to hard-core pornography and hate literature. Ontario faced a similar problem when the province’s Supreme Court ruled that the Ontario Censor Board violated freedom of expression by leaving the definition of obscenity “to the whim of an official.” But the province responded by reconstituting the board under another name and equipping it with detailed criteria for rating, cutting or banning films.

Three years after its proclamation, a living Constitution continues its slow evolution. The only certain legacy of the Queen’s visit is a new restlessness in Canada—an unwillingness to assume that any law is beyond challenge. And the courts have indicated a clear willingness to support that mood with cautious but liberal judgments—judgments rendered in the full knowledge that ultimately they will recreate the nation. As Justice Willard Estey of the Supreme Court of Canada wrote in the court’s first Charter ruling: “The Charter is designed and adopted to guide and serve the Canadian community for a long time. Narrow and technical interpretation, if not modulated by a sense of the unknowns of the future, can stunt the growth of the law and hence the community it serves.”

With correspondents' reports.