A new era for the courts draws closer

Legality and convention are all very well, but the charter of rights will have more impact

JOHN HAY October 12 1981

A new era for the courts draws closer

Legality and convention are all very well, but the charter of rights will have more impact

JOHN HAY October 12 1981

A new era for the courts draws closer

Legality and convention are all very well, but the charter of rights will have more impact

In its ruling last week the Supreme Court of Canada did far more than give heart to the federal government: it moved the country closer to granting vast new powers to its judges through the proposed charter of rights. When the charter is finally enacted, judges across the land will be able to strike down laws not only—as in the past—when they overstep the jurisdiction of another level of government, but also when they conflict with the terms of the new constitution. Laws that now discriminate by race or sex, for instance, could be nullified. More novel, in Canadian legal history, is the enforcement power granted to the courts in the proposed charter. Example: in the past, evidence has been admissible in trials even when illegally obtained—by police who deny the defendant’s right to counsel, say. But the charter declares that anyone whose rights or freedoms are infringed may go to court “to obtain such remedy as the court considers appropriate and just in the circumstances.” In the case of a jailhouse confession knocked out of a prisoner whose rights have been breached, a judge could disallow evidence on grounds its use “would bring the administration of justice into disrepute.” That’s meant to encourage police to obey the law. As Pierre Trudeau often argues, the charter limits government powers to the individual’s benefit; in the process, it transfers enormous powers to judges. The only guide to how judges may use these powers is their behavior in the past.

Despite the hoary sobriety of the high courts, much of Canada’s constitutional history has been written in booze: early temperance cases helped set the balance between federal and provincial law-making powers, and poor old Joe Drybones sobered up to go down in history with his famous anti-discrimination case (about which more below). Though drugs have replaced drink in some recent precedents, liquor can still be quicker for proving a legal point. Take the unhappy case of a certain Thomas Arthur Hogan, picked up by a policeman June 3, 1972, near Dartmouth, N.S., and ordered to take a breath test. Hogan refused and asked to call his lawyer. This was denied by the cop, who told Hogan he must blow or be charged with refusing to do so. Hogan blew, and was later convicted.

His case went all the way to the Supreme Court, which two years before had ruled that another motorist had been

within his rights to refuse the breath test when denied access to counsel. In 1974, though, the court ruled against Hogan: his breath sample was admissible evidence at his trial. In other words, if a driver is denied counsel but cooperates with the police he can be convicted by the fumes out of his own mouth; better to insist on calling a lawyer. Trouble is, most people might need a lawyer to tell them they have a right to call one. To some, all this might just vindicate Mr. Bumble’s cockney claim in Oliver Twist that “the law is a ass, a idiot.” But it makes two other points: the law is what judges say it is, and the weight of legal rights must rest on

something more reliable than a cop’s sweet nature or his legal advice. Even with a charter for protection, though, there is no guarantee that judges will lunge at the chance to expand their authority in the defendant’s interest.

The court ruling last week brings judges closer to making that decision. Undeniably, the charter will give Canadian courts power they have never held before, but whether they will use it is not as clear. As a group, judges are not adventuring rebels. An appointment to the bench commonly happens like prostate trouble —to males, in middle age. (Of 677 federal judgeships, only 25 are held by women.) Since Confederation, the federal cabinet has wielded the power to appoint judges—in both the federal and provincial court systems down ïto all but the lowest levgels. Only magistrates |and the like are hired by oprovincial governments. Judges are generally recruited from well-off, often well-connected barristers: the main qualification set by the Judges Act is having 10 years in law practice. Halifax lawyer Howard Epstein told Maclean's, “it’s foolish” to think such men are equipped to use the words of the new charter creatively: “No. 1, because they’re lawyers and they’re trained to be narrow-minded. No. 2, they’re establishment lawyers and they’re trained to uphold the rights of business by their experience as lawyers before they go to the bench. And No. 3, they’re political appointments, so what would you expect?” University of Toronto political scientist Peter Russell is less damning, drawing the spectrum of judicial philosophies “a little wider than Conservative and Liberal cabinets.” They are, in short, selected from a governing elite, says Russell, but then “that is the way Canada is governed.”

Most of all, Canadian judges are steeped in the caution and gradualism of the common law, a tradition that holds that Parliament is supreme and that judges don’t make laws, they interpret them in particular cases. Edward Greenspan, one of Toronto’s hotshot criminal lawyers, predicts judges “will move with great reluctance” to strike down laws for breaching the rights charter. “Their entire thinking is against that,” says Greenspan; there is no principle here of an American separation of powers among executive, legislative and judicial branches of government. Keen as he is to protect future clients with the remedy offered by section 24, Greenspan thinks it will take a century of cautious judgments before the impact of that clause’s protection becomes clear. Says Vancouver storefront lawyer Allan McLean: “We have activist judges in Canada. But they’re actively conservative.” McLean would have liked mandatory rules forjudges in the charter, “like the directions you get on how to set up your kid’s jungle gym.”

Yet there is a more hopeful view. Walter Tarnopolsky, University of Ottawa law teacher and president of the Canadian Civil Liberties Association, notes that until 20 years ago civil liberties weren’t even taught in most Canadian law schools. With that 10-year lag imposed by the Judges Act, only now are judges being appointed with values and training acquired in the 1960s—new blood readier to handle rights issues than their elders have been. Alan Gold, another prominent Toronto defence counsel, thinks judges are prepared to use their powers with the charter, though he sensibly recalls that the U.S. Bill of Rights was 100 years old before the U.S. Supreme Court found racial segregation to be unconstitutional.

Gold’s chief concern is to crack down on pretrial police misbehaviorsearches, seizures, confessions by browbeating or trickery. If evidence were ruled inadmissible because it brings “the administration of justice into disrepute,” police might be less partial to such tactics.

Take the case of Rothman v. The Queen, decided in the Supreme Court just last March. Robert Rothman was arrested in Ottawa, charged with possession of hashish for the purposes of trafficking and invited to make a statement. He refused and was put in a cell. There he was joined hours later by a man who said he was a trucker, in for a traffic ticket. Rothman told the trucker he was a hash dealer; the trucker, of course, turned out to be an undercover cop. But the trial judge directed a not-guilty verdict because of the police deceit. In a 7 to 2 decision, the Supreme Court ruled that the confession was admissible because it was voluntary and ordered a new trial. In a dissent, however, Mr. Justice Willard Estey wrote that Rothman’s confession couldn’t have been voluntary because he didn’t know he was talking to a policeman and that the “determined subversion” of the right to silence “brings the administration of justice into disrepute.” Chief Justice Bora Laskin agreed with Estey.

Estey’s judgment cited one kind of balance: between the need to convict the guilty and the need to avoid convicting the innocent. But the American jurist Oliver Wendell Holmes looked to another balance in such cases: “For my part, I think it a less evil that some criminals should escape than that the government should play an ignoble part.”

Whether Rothman would have suffered a kinder fate with a constitutional rights charter in place is moot. What can be said is that judges all across the land, from the lowest courts up, will take their signals from the Supreme Çourt’s handling of its first charter cases. Lawyers and scholars divide on whether the high court will be guided by its own precedents or start work on the charter with a clean slate.

And that brings us back to Joe Drybones, slumped drunk in the lobby of Yellowknife’s Old Stope Hotel one Saturday night in 1967. Monday morning, Drybones was convicted and fined $10 under the Indian Act, which made it an offence to be an Indian intoxicated off a reserve. In due course, the Supreme Court held that the Indian Act breached the racial equality provisions of the Bill of Rights passed by John Diefenbaker’s government in 1960; Drybones was acquitted because the act created an offence applicable only to Indians. This was the first time the court had quashed a federal law because it conflicted with the Diefenbaker bill. To the dismay of many, it was also the last. Laskin himself told an interviewer last year that the record since Drybones “hasn’t been, at least from my point of view, a very happy one.”

In case after case (often with Laskin in a dissenting minority) the court has refused to place the 1960 Bill of Rights above other statutes. In a 1973 case, for example, the court upheld Indian Act clauses that deprive Indian women of

their status when they marry non-Indians but does not deprive Indian men of the same rights when they marry nonIndians—an apparently clear case of sex discrimination. All of which leaves many civil rights activists skeptical of the ^court’s future willingly ness to exploit the new £ powers. Concluded the 5 Quebec Human Rights

1 Commission after its s study of the charter: < “When one takes into account the reticence and

2 the timidity shown in the past by the Supreme Court even in matters as

fundamental as equality before the law, the most pessimistic outlook seems well-founded.”

There is room, however, for some optimism. The Supreme Court has changed with the passage of time, and the charter will be an entirely new instrument in its hands—unlike the Bill of Rights, indisputably overriding ordinary statutes. Lawyers who have argued before the Laskin court all it more intellectually vigorous, more open to fresh theories, than in the past. They point approvingly to the scholarship and drafting ability of some of the new justices—Brian Dickson, Estey, William McIntyre, Antonio Lamer. Ed Ratushny of the University of Ottawa law school, whose text on the law of self-incrimination catalogues police tricks and intimidation tactics of the kind that trapped Thomas Hogan, thinks the new charter is just what activist judges need to break out of confining precedents and make new law in such areas as the rights of the accused and discrimination. Ratushny and fellow experts doubt the court will go as far as American courts in ordering governments to take specific actions—to impose school busing, for instance. That, they say, is simply not in the nature of the Canadian judiciary. As the judgment last week showed, however, even the most technical legal questions come freighted with great social and political consequences. Judges often find it hard to resist drawing political conclusions, even when they want to. -JOHN HAY