Like trigger-happy soldiers armed with formidable new weapons, lawyers across the nation will descend on the courts this week, brandishing the Canadian Charter of Rights and Freedoms. The charter—with its lofty and often inspiring litany of high principles and protections—will soon be required reading for generations of proud schoolchildren. But, in the short haul, since the perplexed courts must spell out what those general rights mean in practical terms, the document has also spawned a thriving cottage industry for the legal profession. Litigation will spread like wildfire. Legal proceedings may balloon with intricate arguments and novel cases may mushroom. For its part, the Supreme Court of Canada will be wrestling for decades with a new species of vexing constitutional dilemma—the “reasonable limits” to individual rights. “It’s open season on all our laws,” declares Toronto criminal lawyer Edward Greenspan. “Everything has to be rethought and reconsidered.”
The document that has unleashed this legal bonanza is a stirring 34-clause list of fundamental freedoms, democratic rights, mobility rights, equality
rights and language rights—including minority-language education rights. The dramatic court contests will arise because the charter can only proclaim the existence of a right such as freedom of religion. It cannot stipulate how this right will apply in individual civil and criminal cases. A commonsense yardstick is provided in Clause 1, which stresses that these rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” But it is the courts that must draw the fine line in every case through competing barrages of compelling and often emotional arguments.
The first major invocations of the charter will likely occur in the criminal courts this week as sharp-witted defence lawyers attempt to argue that some charter legal rights are retroactive. And the three principal clauses that may detonate these challenges are an individual’s right to be informed of his right to see a lawyer, to protection against unreasonable search or seizure and to be tried “within a reasonable time.”
To deter some challenges, nervous police officers have been issued cards to remind them that they must
“promptly” spell out the reasons for an arrest or detention and tell the suspect of his right to “retain and instruct counsel without delay.” Meanwhile,'the “search or seizure” protections could clash head-on with such provisions as an Ontario law that allows police to stop cars at random to check licences— a method of detecting drunken drivers. And the right to be tried within a reasonable time could wreak havoc on clogged court calendars. Greenspan plans to argue this fall that two clients charged with possession of hashish for the purpose of trafficking, in December, 1979, have been denied their right to a prompt trial.
The courtroom theatrics will really commence, however, when lawyers invoke Section 24—one of the most potentially explosive clauses in the charter. The language allows lawyers to ask the court for remedies for rights violations. And because it is vague and apparently loosely drafted, attorneys are going to have a field day. Many criminal cases will probably now be lengthened because lawyers will argue that many rights have been violated.
Then they could suggest that key evidence should be excluded or that the case should slip into judicial limbo as possible remedies. Some justice department lawyers privately admit that it is not clear if the Crown can appeal many of these remedy awards. It is also not clear whether the judge who conducts the trial must be the judge who handles the remedy requests.
This confusion does not mean, however, that judges are likely suddenly to hatch many radical new precedents.
The Canadian judiciary tends to favor the most conservative interpretation of any law. And the commonsense yardstick in Clause 1 should ground most flights of judicial fancy. “I don’t see that a significant amount of change is forthcoming, but that vieyr is predicated on the belief that the courts will pay attention to Clause 1,” says Ontario Assistant Deputy Attorney General Rod McLeod.
And most experts believe that McLeod’s cross-your-fingers view will probably prevail. “The courts are going to move slowly and cautiously through this thing,” predicts Ed Ratushny, a professor of law at the University of Ottawa. “There is certainly going to be a great deal of uncertainty and divergence. Some lawyers will be throwing in everything but the kitchen sink. But the judiciary will be slow to radically change things, because that’s our tradition.”
The civil challenges based on the charter could vitally affect many more Canadians. Since the key equality provisions do not take effect until April, 1985, charges of discrimination against jittery governments are temporarily postponed. But such provisions as the prohibition of discrimination against the mentally or physically disabled could prompt the courts to rule that transit systems must accommodate the handicapped.
In the interval, governments are bracing for some other hefty challenges. Freedom of association may allow the United Rubber Workers of America to overturn the controversial Nova Scotia law that effectively blocked the formation of trade unions at Michelin plants. The right to vote could
prompt prisoners in Saskatchewan jails to demand that right in the April 26 provincial election. “The charter is big industry,” says Dale Gibson, a University of Manitoba constitutional law professor. “There is a real panic setting in at some levels of the judiciary-some judges feel that it is too much for them to cope with—although I believe that people are exaggerating the problems that are going to arise.”
The charter is also on a collision course with most minority-language education provisions across the land—especially Quebec’s contentious Bill 101. Under the charter, children are eligible to receive minoritylanguage training if a parent has been educated in that language anywhere in Canada. Under Bill 101, that right applies only when a parent has been educated in English in Quebec. At the same time, francoaphone parents in other ^provinces will be allowed áto demand school facilities where numbers warrant.
Confronted by this kaleidoscopic spectrum of legal work, the law profession has been busily setting up seminars. Provincial law societies are sponsoring conferences with the Canadian Bar Association. The justice department is briefing prosecutors. Cram courses for judges have been set up. At the same time, the federal and provincial governments are raking their statute books, trying to weed out laws that conflict with the charter. A rough preliminary estimate by the Canadian Human Rights Commission identified about 100 federal laws that should be changed—such as Income Tax Act provisions that give different treatment to men and women when they claim deductions for child-care expenses.
The vast flurry of activity will probably be both a blessing and a bane for the average Canadian. In the short run, until higher court judgments begin to produce precedents, lawyers are clearly set up for some lucrative and fascinating undertakings. And since it is too late to heed the advice of Shakespeare’s Henry VI to “kill all the lawyers,” Canadians will probably have to accept the long-run wisdom that rights are might against abusive politicians. t;£?
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