JUSTICE

Altering the contours of society

MICHAEL ROSE March 17 1986
JUSTICE

Altering the contours of society

MICHAEL ROSE March 17 1986

Altering the contours of society

JUSTICE

The announcement was the latest development in a legal drama that has been unfolding since the Queen proclaimed the Canadian Constitution Act in April, 1982, and the Charter of Rights and Freedoms became law. Last week Justice Minister John Crosbie unveiled his government’s long-awaited measures to

eliminate inequality in Canada. And his proclamation highlighted the fact that the charter—particularly the equality rights provisions in Section 15 which became law in 1985—has profoundly and irrevocably altered the functions of legislators. At the same time, two Supreme Court of Canada decisions, in which judges took the historic step of interpreting not just the letter but the spirit of the law, dramatically illustrated the Constitution’s sweeping effect on Canadian life. Declared Winnipeg lawyer Jack R. London: “After all is said and done, we have had a political revolution in this country—judges and legislators have known it, but the public is only now recognizing that.”

Crosbie himself acknowledged the sweeping changes that the charter has introduced. As he released his 65page volume of equality measures he said, “Some of this is felt to be revo-

lutionary by some people.” But the document did not contain many of the specific changes that some MPs and lobby groups had expected. Said Samantha Sanderson, spokesperson for the National Action Committee on the Status of Women: “Clearly there is room there for discrimination to continue.” Still, as a detailed re-

sponse to a 1985 report by an all-party parliamentary committee, Crosbie’s package, titled Toward Equality, did contain a number of items with significant implications. Among them are the following federal government proposals:

• Open all trades and occupations— including combat roles—in the Canadian Armed Forces to women, but only if the military decides that it is “operationally effective in the interests of national security.”

• Ban “arbitrary discrimination” based on a person’s sexual orientation in all areas of federal jurisdiction, including the Canadian Forces and the RCMP.

• End mandatory retirement at 65 in the federal public service. Crosbie says that he expects to introduce similar measures for federally regulated companies in the private sector by the end of the year.

• Study how voting rights in federal

elections can be extended to the mentally handicapped.

•Order the automatic splitting of Canada Pension Plan credits between spouses when a marriage breaks down.

As well, Crosbie proposed improved employment benefits for part-time workers, special statutory holidays for religious minorities and universal wheelchair access to all federal buildings by 1995.

Spokesmen for both opposition parties condemned the government initiatives as too weak, and they declared that many important equality issues would still have to be settled in court. Said Montrealarea Liberal MP Sheila Finestone, a member of the 1985 review committee: “I think the document should have been written by the minister of sports, because it skates around most of the major issues.” But in response to criticism, Secretary of State Benoît Bouchard, who answered reporters’ questions with the justice minister, declared, “A report like this is not designed to satisfy everyone.” o. Groups representing women, the handicapped and other mils norities reacted cautiously to I the package. Shirley Robinson, a retired Canadian forces lieutenant-colonel who was among those leading the fight for enhanced opportunities for women in the military, said that the proposals were helpful. But she added, “We are worried that perhaps it will be left in the hands of the generals again.”

Nor was it immediately clear that the government directives would eliminate the practice in the RCMP and the Armed Forces of firing or refusing to hire known homosexuals. Crosbie said that the two organizations “will be required to observe the law.” Still, he left open the possibility that there might be “bona fide occupational requirements” that would prevent the police and the military from employing homosexuals. As well, at week’s end Solicitor General Perrin Beatty said that homosexual applicants may still be rejected if they hide their sexual preference and therefore expose themselves to the possibility of blackmail. And when NDP justice critic Svend Robinson

asked in the Commons whether homosexuals would no longer experience “oppression” in the RCMP, a Tory backbencher shouted, “Don’t hold your breath.”

Crosbie faces strong opposition in his own caucus to some of the more liberal proposals. One critic was Calgary MP Alex Kindy, a member of a small group of right-wing Tories firmly opposed to recognition of homosexual rights or an increased role for women in the Armed Forces. Kindy told reporters last week that “over 50 per cent” of the Conservative caucus could not accept the government’s recommendations in those areas. Saying he would vote against any legislation in those areas, Kindy declared, “I think we are condoning a third sex, something that is not exactly normal.” As a result, Crosbie tried to defuse the potentially explosive situation by declaring that his measures did not imply “approval for just any lifestyle.” And at week’s end, a senior official in the Prime Minister’s Office told Maclean’s that Brian Mulroney made it clear to the caucus that dissidents would not influence him. Despite some members’ moral or religious objections, Mulroney added that it was 1986 and there would be no moving backward.

Many of the charter-inspired social changes have been initiated by Supreme Court rulings rather than by action in Parliament or provincial legislatures. And two recent court rulings underscored the growing power of its nine justices. Last month they struck down a section of the Narcotic Control Act which stated a person found in possession of an ille-

gal drug is presumed to be trafficking unless he is able to establish his innocence. The charter guarantees that a person charged with an offence has the right to be presumed inno-

cent until proven guilty. The ruling, according to legal experts, could have far-reaching effects on such other pieces of legislation in the Criminal Code as bail laws and parts of the Customs Act—which also place the onus of proof on the person charged.

Another Supreme Court ruling— potentially more significant but issued with little publicity shortly before Christmas—invalidated a British Columbia statute that imposed mandatory jail sentences on people who drove with suspended licences, knowingly or not. The court ruled that by punishing people who may not have been aware they were at fault the law violated rights guaranteed by Section 7 of the charter. Those include “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” A critical section of the December decision said, “The court was of the view that the phrase ‘principles of fundamental justice’ was not restricted to matters of procedure but extended to substantive law, and that the courts were called upon to have regard to the content of legislation.” Procedural matters include legality of trials, sentencing and damage awards. Substantive matters—which require fundamental moral or sociological evaluation—include abortion, liquor control and Sunday shopping laws.

Some legal analysts say that the courts in future will assume an increasingly powerful interpretive role, second-guessing the merits of legislation and becoming in effect a superlegislature beyond the reach of Parliament and the electorate. But many experts favor the court’s extended authority. Winnipeg lawyer London noted that legislators may avoid judicial interference by specifically exempting particular laws from the Constitution, and declared, “The wider the Supreme Court casts its net of jurisdiction, the better.” Added University of Ottawa law professor Joseph Magnet: “The court’s new responsibility is to ensure that legislatures observe minimum standards of decency when they enact legislation—it won’t tell the legislatures what to do, but if laws fall below those minimum standards they will be struck down.” The continuing response by judges—and by politicians who face more frequent challenges to their legislation—to the court’s new and onerous responsibilities promises to fundamentally alter the entire nature of Canadian society.

MICHAEL ROSE

ANNE STEACY