RAE CORELLI January 11 1988


RAE CORELLI January 11 1988



Since the Charter of Rights and Freedoms became law in 1982, the Supreme Court of Canada has handed down 59 judgments involving its provisions. In some of the cases, the court found that federal and provincial statutes were in conflict with the charter and, as a result, struck them down. In other cases, the court upheld existing law. But in most cases, the court broke new ground. Some of the more significant judgments:

Yvan Vaillancourt vs. the Queen: Vaillancourt was convicted of second-degree murder and sentenced to life imprisonment following an attempted robbery at a Montreal pool hall. At his trial, Vaillancourt testified that he and an accomplice had agreed to commit the robbery with knives. When the accomplice arrived with a gun, Vaillancourt said, he demanded that it be unloaded. The other man took three cartridges from the weapon and gave them to Vaillancourt, who put them into his glove, where police later found them. However, the gun was not empty, and the accomplice shot and killed a customer before escaping (he is still at large). Vaillancourt testified that he had been certain that the gun had been empty.

Vaillancourt was convicted under a section of the Criminal Code that says that a person is guilty of murder if he has a weapon during the commission of a crime and if “death ensues as a consequence.” Vaillancourt appealed to the Supreme Court on the grounds that the section was a denial of his charter right not to be deprived of “life, liberty and security of the person” except under the “principles of fundamental justice.”

The court, with only Mr. Justice William McIntyre dissenting, upheld the appeal, quashed the conviction and ordered a new trial. In the majority judgment, Mr. Justice Antonio Lamer said that it was a principle of fundamental justice that a person could not be convicted of murder in the absence of proof beyond a reasonable doubt that he knew that his actions were likely to cause death. Lamer said that the law fell far short of that standard and that it was worded in such a way that a person could be convicted of murder even though the jury had “a reasonable doubt as to whether the accused ought to have known that death was likely to ensue.” As well, wrote Lamer, it is not necessary to convict people of murder in order to discourage the use

of weapons. He added, “If Parliament wishes to deter the use or carrying of weapons, it should punish the use or carrying of weapons.”

The Public Service Alliance of Canada vs. Treasury Board and the Attorney General of Canada: The Public Service Alliance, the bargaining agent for

168,000 federal employees, sought a declaration that Ottawa’s 1982 action in fixing wage increases and freezing collective agreements violated the charter guarantee of freedom of association.

In a 4-to-2 decision last April 9 the court turned the union down. For the majority, Mr. Justice Gerald Le Dain held that freedom of association does

not include “a guarantee of the right to bargain collectively and the right to strike.” In a strongly worded dissent, Chief Justice Brian Dickson wrote that although he had no quarrel with temporary wage ceilings to combat inflation, there was no justification for removing the union’s constitutionally protected right to bargain nonmonetary issues.

Operation Dismantle and others vs. the Queen and the Prime Minister of Canada:

In February, 1984, Operation Dismantle and 22 other nuclear disarmament, women’s and labor groups asked the court for an injunction against further testing by the United States of cruise missiles in Canada. The groups argued that the program violated the charter guarantee to “life, liberty and security of the person” by both heightening the risk of nuclear war and the likelihood that Canada would be a target.

In a unanimous decision, the court dismissed the action because the groups “could never prove the causal link between the decision to permit the testing and the increase in the threat of nuclear conflict.” Wrote Dickson: “It is simply not possible for a court, even with the best available evidence, to do more than speculate.”

Retail, Wholesale and Department Store Union, Local 580, vs. Dolphin Delivery Ltd.: The union represented employees of the courier firm Purolator, which locked them out in June, 1981, in a contract dispute. Before the lockout, Dolphin had made deliveries for Purolator in Vancouver and afterward for Supercourier, a company connected with Purolator. The union told Dolphin that it would picket unless the company stopped doing business for Supercourier. Dolphin immediately obtained an injunction forbidding secondary picketing, and the union appealed to the Supreme Court on the grounds that it had been denied its constitutional right to freedom of expression.

The union lost. The majority judgment handed down on Dec. 18,1986, held that because the case was between private parties “and did not involve any exercise of or reliance on governmental action,” the charter did not apply and the appeal was dismissed.

However, wrote the judges, as a general rule “all picketing involves some form of expression and enjoys charter protection” unless the picketers resort to violence.

Lawson A.W. Hunter, director of investigation and research of the Combines Investigation Branch vs. Southam Inc.:

On April 20,1982—three days after the Constitution was proclaimed—combines investigators, armed with a warrant signed by a member of the federal Restrictive Trade Practices Commission, began searching the files of The Edmonton Journal. They refused to say what had led to the search, what section of the Combines Investigation Act théy were acting under or what they were looking for. The Alberta Court of Appeal found in favor of Southam Inc., owners of the Journal, holding that the

search provisions of the combines act violated the charter right of security against “unreasonable search and seizure.” The combines director appealed to the Supreme Court—and lost.

A unanimous decision released on Sept. 17, 1984, upheld Southam and dismissed the appeal. The court ruled that for a search to be lawful, the person authorizing it must “be able to assess the conflicting interests of the state and the individual in an entirely neutral and impartial manner.” The judges concurred that the role could not be filled by a member of the commission, which had “significant” powers of investigation. At the same time, z wrote Dickson for the Q majority, the minimum standard set by the char-

ter for authorizing searches and seizures was that there be “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and there is evidence to be found.” But the search provisions of the Combines Investigation Act contained no such standard.

The Queen vs. Big M Drug Mart Ltd.:

Calgary police charged Big M Drug Mart on May 30,1982, with doing business on Sunday and, as a result, violating the federal Lord’s Day Act. But both the provincial court trial judge and the Alberta Court of Appeal deter-

mined that the act was a violation of the charter guarantee of freedom of conscience and religion.

The Alberta attorney general appealed to the Supreme Court. In a unanimous 87-page judgment handed down on April 24, 1985, Dickson dismissed the appeal and struck down the Lord’s Day Act because its true purpose “is to compel the observance.of the Christian Sabbath.” Wrote Dickson: “It has become the right of every Canadian to work out for himself or herself what his or her religious obligations, if any, should be and it is not for the state to dictate otherwise. The state shall not use the criminal sanctions at its disposal to achieve a religious purpose.”

In a 6-to-l judgment delivered on Dec. 18, 1986, the court upheld the Ontario Retail Business Holidays Act because its objective was not religious but to provide “uniform holidays for retail workers.”

—RAE CORELLI in Ottawa