The charter’s quiet legal revolution

John Hay April 25 1983

The charter’s quiet legal revolution

John Hay April 25 1983

The charter’s quiet legal revolution


John Hay

A Calgary woman was caught redhanded with hashish but she won acquittal because her arrest was ruled unjust. In Quebec a judge struck down parts of a six-year-old language law as an unreasonable breach of citizens’ rights. A judge in Newfound-land impugned the power of a wildlife officer to search a home without a warrant. In courtrooms across the country the experience is the same: the statutes and trusted customs of Canadian law are under challenge as never before because of the Canadian Charter of Rights and Freedoms.

Proclaimed by the Queen’s own signature on a rainy Saturday one year ago on Parliament Hill, the charter is more than the centrepiece of the new Constitution. It is causing a legal revolution. By the stroke of a pen, a system of judicial supremacy has displaced the sovereignty of Parliament and the legislatures. For the first time in Canadian history judges have the power to strike down laws, not only when they transgress federal-provincial jurisdictional boundaries but when they violate rights spelled out in the charter. In the year since its proclamation, more than 500 cases have been fought over the charter’s clauses. Little by little, one case at a time, judges are starting to change the relationship between citizens and governments and to redefine the authority of Parliament and the provincial legislatures. Chief Justice Jules Deschênes of Quebec’s Superior

Court caught the sense of change in his landmark judgment last Sept. 8 on minority-language education rights: “The charter has radically altered the rules of the game.”

Some lower-court judgments have been bold, others have been more subdued. But their scope has ranged from the rights of schoolchildren, through the Income Tax Act, to anyone caught up—however innocently—in the criminal justice system. The decisions reflect nearly every element of the charter’s 34 sections: freedoms of religion and ex-

pression, rights to vote and live anywhere in Canada, rights to a fair trial and protections against search and seizure by the authorities. On balance, said Justice Minister Mark MacGuigan, the high courts “have approached the charter responsibly, have avoided any extremes, but have made it quite clear that the charter will have a considerable impact on the future of Canadian law.”

Only when appeals begin reaching the Supreme Court of Canada will the lower-court contradictions be resolved and the lay of the law established. The Supreme Court’s nine justices are to hear the first charter case on May 17—a test of the National Parole Board’s power to suspend a prisoner’s release before the end of his sentence. It will take years for the Supreme Court to instil any clear meaning into the charter as it referees the disputes that come to it. Still, some cases working their way to the court already stand out as potential precedents for future judgments.

Innocence. The presumption of innocence is a keystone of the British justice system transported to Canada with the British North America Act of 1867. But Parliament has made exceptions, as David Oakes discovered one December night in London, Ont., when he was picked up, searched and charged with possession of eight vials of hashish oil for the purpose of trafficking. Like

some other laws, the federal Narcotic Control Act contains a so-called reverse onus provision. Once the Crown proves possession, it is the defendant’s obligation to prove that it was not his purpose to traffic. But the Oakes drug arrest may make history. At the trial the judge threw out the trafficking charge on the grounds that the reverse onus breached the defendant’s charter right to the presumption of innocence. Lawyer Geoffrey Beasley defended Oakes in the Ontario Court of Appeal, which upheld the decision. Oakes was convicted of simple possession, but the Supreme Court has agreed to hear the Crown’s appeal on the trafficking charge.

The Oakes case, and similar judgments against the Narcotic Control Act in Prince Edward Island and Nova Scotia, have disturbed law enforcement officials. Says Nova Scotia’s attorney general, Harry Howe: “It must be bringing joy to the hearts of those who traffic in drugs.” For civil liberties activists, the Oakes case will be an important test of the meaning of Section 1 of the charter, which guarantees the charter’s specified rights and freedoms “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” At issue in the Oakes case is whether the reverse onus exceeds “reasonable limits.”

Seizure. Another ancient but fragile right is the protection against unreasonable search and seizure by police or government bureaucrats. The Winnipeg-based firm of James Richardson and Sons Ltd. is using the charter to oppose a Revenue Canada demand for documents under the Income Tax Act. So, too, is Southam Inc., to oppose a search of its Edmonton Journal offices by Combines investigators. Both cases are destined for the Supreme Court.

Language. The charter also established the right of Canadian citizens to educate their children in the minority language of any province, wherever the numbers warrant. It was first tested in Quebec when three school boards and a group of parents contested the province’s Bill 101, which provides Englishlanguage schooling only to children of parents who themselves attended English schools in Quebec. Deschênes ruled that the cultural goals of Bill 101 were legitimate, but the means adopted “needlessly exceed reasonable limits.”

Extradition. The charter declares that every citizen “has the right to enter, remain in and leave Canada.” Albert Helmut Rauca, 74, an alleged Nazi mass murderer wanted for trial by the West German government, used that section to fight his extradition by Ottawa. The Ontario Court of Appeal ruled last week that Rauca—a citizen since 1956— would indeed suffer a violation of his

right to remain in Canada, but that the violation is justified in a free and democratic society. It was open to Rauca to appeal to the Supreme Court of Canada, which he plans to do.

Freedoms. The charter asserts the freedom “of thought, belief, opinion and expression, including freedom of the press and other media of communication.” The Ontario Supreme Court recently struck down sections of the province’s Theatres Act that empowered a

censor board to cut movies or to prevent their showings, on grounds that the loosely drafted law violates freedom of expression. But, says Alan Borovoy, general counsel for the Canadian Civil Liberties Association, it was “a defeat in victory’s clothing” for civil liberties advocates. In fact, the court said that the province is within its rights to censor movies and only needs to pass more explicit regulations to guide the board.

Early predictions that the Canadian judiciary would use its new charter powers conservatively have proven accurate. As the court said in the censor

board case, judges “will exercise considerable restraint” before knocking down laws passed by elected legislators—a point that Supreme Court Chief Justice Bora Laskin has frequently expressed. The courts have, in the past, appeared equally restrained—and diverse—in handling a different charter-related kind of case: the rights of the accused and the question of police misconduct. The charter gives anyone whose rights have been breached the right to ask a judge for a remedy. More specifically, it empowers judges not to allow any evidence in a trial if it was obtained through a violation of rights and “would bring the administration of justice into disrepute.” One of the aims: to control policemen who have been too often tempted to ignore the rights of people they arrest. The results so far have been confusing. Some examples:

• Until the constable stopped her at the ticket gate, Robyn Burwell, 22, was just another young woman heading into a rock concert at Calgary’s Stampede Corral last August. But she was caught in a spot check, and the police found a vial of hashish oil and a piece of hashish in her purse. But she was acquitted when provincial court Judge Douglas MacDonald, in a charter-based ruling, accepted her lawyer’s plea that the spot checks amounted to “unreasonable search or seizure.” MacDonald ruled that the Crown must not only produce the drugs as evidence but also “the reason why the search was caused.”

• In Edmonton, on the other hand, police entered a hotel room without a search warrant to find cocaine for a trafficking charge against three men. Justice Joanne Veit found the seizure illegal, but admitted the cocaine as evidence, ruling that exclusion of the evidence—rather than admission—in this case would “bring the administration of justice into disrepute.”

• In three separate cases in the past year police in various regions failed to caution people whom they had arrested of their right to counsel and the reason for their arrest—but the evidence was admitted anyway. In other cases, however, such police lapses have led to exclusion of evidence.

The lower-court contradictions can only be settled when cases reach the Supreme Court for final rulings. Until then, the new legal protections offered by the charter will remain problematic.

Whatever disciplinary impact the charter might have on police, in the past year it has clearly changed the work of Canadian judges. Ontario Supreme Court Justice Gordon Blair predicts that Canadian courts will become less engrossed in the federal-provincial struggles that have dominated constitutional cases for decades and deal more “with the limits placed on governmen-

tal power by the charter.” Adds Blair: “To an amazing degree, the people have confided their fates to a nonelected judiciary. Far from being flattered, judges are concerned about the immense new responsibilities cast upon them and the high degree of public expectation that they can provide answers to so many of society’s problems.” Overloaded dockets and controversial judgments, says Blair, threaten to subject the courts to public disappointment and hostility.

Lawyers—perhaps the people best able to judge the work of judges—differ on the courts’ early performance with the charter—although most have discovered what amounts to a new industry. Martin Low, general counsel for human rights law at the federal justice department, says neither judges nor barristers were well prepared to argue charter issues when the Queen made it law. Law Prof. Robin Elliot of the University of British Columbia says the courts have been surprisingly vigorous in using their charter-given powers: “I would say that many more cases are producing results that have the effect of changing the law than I would have predicted,” he declared. In St. John’s criminal lawyer John Glube says it is often up to lawyers to “educate the bench” on the charter’s ins and outs.

Deschênes’ important judgment on minority education aside, the charter has made its weakest impact in Quebec—the one province that has never accepted the November, 1981, constitutional deal between Prime Minister Pierre Trudeau and the other premiers. René Lévesque’s government enacted Bill 62 last June 23, a far-reaching law that expressly overrides charter provisions throughout Quebec’s civil law system. Even in the federal criminal law, unaffected by Bill 62, Quebec judges (and lawyers) seem slow to exploit the powers the charter gives them. Says Montreal-based criminal lawyer Michel Proulx: “Most of our judges don’t understand the basic principles of criminal law because they have such strong civil law backgrounds. The same applies to their approach to the charter—they always tend to play it conservatively.”

Still, the charter has been given life and force across the country in the past year, and its development will ultimately affect everyone. The good or evil of the charter will be determined by the nine Supreme Court justices. It will then be up to the people to judge their judgment.

Peter Carlyle-Gordge

Gail Dugas

Dale Eisler

Randolph Joyce

Rosa Harris-Adler

Gordon Legge

Diane Luckow

Paul Lungen