Public Law II: Jan 13 2006
The Road to the Charter
• 1968: Trudeau became PM.
He wanted:
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stronger federation
patriation of constitution
Const. Charter of Rights
better-protected language and
mobility rights
• 1970: Molgate-MacGuigan
Committee found strong
support for a const. Charter
• 1971: Victoria Charter
– agreement for Ch and pat.
– opposed in the end by Quebec
and Alberta
• 1976: PQ elected in Quebec
• 1980: Referendum
– Trudeau promised renewed
federalism
• 1981:
– negotiations; no agreement
– “unilateral” patriation attempt
– reference to 3 Prov Cts of
Appeal; appeal to SCC
– SCC Ruling:
• legal, but breaks convention
– Nov. 1981 const conference
• compromise
November 1981 compromise
• Patriation of constitution with the amending
formula favoured by most of the premiers (the 750 formula), but which Trudeau had opposed
• acceptance of a constitutional Charter of Rights
which would contain a “notwithstanding” (non
obstante) clause
• Trudeau insisted that the notwithstanding clause
not cover language rights, minority language
education rights, or mobility rights;
notwithstanding clause would have a 5-year limit
The Charter of Rights
became law April, 1982
• 1. Limitations clause
• 2. Fundamental
freedoms:
– conscience and religion
– thought, belief, opinion
& expression
– press and other media
– peaceful assembly
– association
• 3-5: Democratic
rights:
– citizens right to vote and
run for office
– 5 yr limit to life of H of C
or prov. Assembly except
during war etc. if supported
by 2/3 vote
– sitting of Parliament, and
prov. Legislatures, at least
every 12 months
Mobility and Legal Rights
• 6. Mobility rights
– 1. to enter, remain,
leave
– 2. to move within Can.
and pursue livelihood,
subject to laws that
don’t discriminate and
residency provisions,
and restrictions in
provinces of high
unemployment
• 7-14 Legal rights:
eveything in Bill plus
– freedom from unreasonable
search or seizure (s. 8)
– trial within reas time
– jury trial if liable to 5 years
imprisonment
– no retroactive offences
– no double jeopardy
– least punishment if law
varied
Equality and Language
• 15 Equality before
and under the law
– without discrimination
based on race, national
or ethnic origin, colour,
religion, sex, age,
mental or physical
disability
– Affirmative action
programmes OK
• 16-22: Language
– supplements S. 133 of CA,
1867, which is still in effect
– applies to Canada (fed) and
New Brunswick only, though
other prov’s can opt in
– Eng & Fr “official langs”
– Debates, statutes, Hansard in
2 langs
– Eng or Fr can be used in
courts
– right to receive services or
communicate in English or
French with gov’t
Minority Lang Education,
remedies
• 23: Minority lang ed
– citizens whose first
lang is Eng or Fr, or
who attended prim
school in Eng or Fr,
have right to educate
children in that lang.
– Siblings rights
– applies where numbers
warrant
• 24: remedies
– (1) “...such remedy as
the court considers
appropriate”
– (2) evidence may be
excluded if its
collection violated a
right, if admitting it
“would bring the
administration of
justice into disrepute”
General
• 25: aboriginal and
treaty rights not
reduced by charter,
including rights under
Royal Proclamation of
1763, and land claims
agreements
• 26: other existing
rights not reduced by
Charter
• 27: multicultural
heritage of Canadians
to be kept in mind
when interpreting the
charter
• 28: equal guarantee to
males and females (this
section isn’t covered by
the “notwithstanding”
clause)
General (continued)
– 29: denominational
school rights in CA,
1867 not reduced
– 30: Territories
included, now and later
– 31: Charter does not
extend legislative
powers; it is a limit
– 32: Application to
Parl, legislatures,
gov’ts (& 3 year delay
for s. 15)
– 33: a notwithstanding
clause can be inserted
into legis. re ss. 2 or 715; 5 year limit; can be
renewed
– 34: ss. 1-34 of CA,
1982 cited as the
Charter of Rights and
Freedoms
Doucet-Boudreau v. Nova Scotia, 2003:
example of application of Ss. 23 & 24
• Impugned provision: order of a
trial judge to force Nova Scotia
to provide secondary schools in
the French language, and report
on its progress.
• Nova Scotia CA: S. 24 doesn’t
give judges the power to
supervise implementation
• SCC: 5-4 decision: upheld the
authority of the trial judge
under S. 24(2)
• Iacobucci & Arbour for
majority of 5:
– if delay is tolerated, govt’s can
avoid Charter obligations
– ordering gov’t to report on
progress is a “creative blending
of remedies,”and leaves gov’t
with discretion as to how to
build & provide schools, and
their nature
• Lebel & Deschamps for
minority of 4:
– violates separation of powers
– reporting order too vague
– judges shouldn’t meddle with
administration
– a deadline for construction,
and threat of a contempt order,
is enough
The Charter and Its Critics
• The Charter undermines
legislative supremacy &
therefore democracy
– Mandel: elected legislators are
closer to the needs of the poor
and oppressed. Judges are
business-oriented. No Charter
decision has/will benefit the
disadvantaged
– Morton-Knopff: Judges may
be “captured” by special
interest groups, mostly on the
left. This subverts democracy.
– Charter erodes participatory
democracy. Human rights can
only be protected by the
vigilance of citizens
• Cost of litigation compared to
the political process
– Lavigne case: NCC spent
$500,000; unions $400,000 +
– OFVAS case: why didn’t
artists use political process to
change Ont censorship law?
Didn’t know how.
– But think of cost of lobbyists
Charter Critics (2)
– Charter litigation focuses
attention on cases that happen
to get to court, not necessarily
most imp issues for society
(Dean Monahan, Osgoode Hall
Law School).
• Cts should interpret Ch to
promote democracy
• Courts are inappropriate for
making policy on human rights
– Stare decisis is backwards
looking, compared with the
possibility of forward-looking
policy formation processes in
public service/legislature
• eg. Appropriate procedure for
determination of refugee
cases
• Schachter case (changes to
parental leave policy)
– Adversary system
• gov’t lawyers argue for a
narrow interpretation of
Charter, whether or not this is
gov’t policy
• courts rely on arguments from
counsel. Sometimes, no
section 1 arguments
• Do judges get a complete
analysis of the issues?
Charter critics (3)
– Backgrounds of judges
• older than average adult
• disproportionately married
with children
• predominantly male
• New Canadians and
Aboriginals under-represented
on bench
• most from business or
professional family
• tend to be successful
• appointment process for Prov
Courts and prov. Superior
courts improving. Elevation
procedure, and SCC secretive
• Similar problems with lack of
representation in legal
profession
• Why do we tend to trust judges
more than elected politicians?
• Was the Charter worth the
upheaval it took to get it?
– Will revisit this question last
week of class
Michael Mandel & the Legalization of Politics
• Judges are supposed to decide
based on principle, and avoid
policy.
– Hard to separate neatly
– Judges tend to be conservative
on social and economic
questions
– Judges tend to be “active” to
support interests of business
and capital, and “restrained” in
relation to advancing the cause
of the disadvantaged
– American precedents tend to
support the advantaged
• Our legal system assumes all
litigants are equal in ability to
defend positions.
– This is why U.S. courts are
reluctant to find affirmative
action programs constitutional
• Charter is supposed to defend
the socially weak against
majority rule.
– But the socially strong have
more to gain
– Elected govts can act to
advance the cause of the
disadvantaged. Charter allows
them to avoid some issues.
Knopff & Morton: Charter politics
• Agree with Mandel that Charter
allows legislatures to pass
difficult issues to courts
• Charter is a “two edged sword”
-- can slash to the right or the
left, depending on the judges
• Do we want judges to be the
“official public philosopher?”
• Should judges be
– “non-interpretivists” (will of
framers -- a straight jacket) or
– “non-interpretivists” (creative,
but perhaps against
democracy)
• The Charter Revolution (1999):
– groups with axes to grind have
used Charter to subvert
democratic process
• feminist groups
• academics
• special interest groups (eg.
Canadian Civil Liberties
Assoc, gay and lesbian
organizations, the gun lobby,
NCC)
• groups representing “Charter”
Canadians (the handicapped,
seniors, new Canadians,
Aboriginals)
Other Charter commentators
• Christopher Manfredi
– s. 33 makes Charter more
democratic
– s. 33 became unpopular
because of signs case
• Alan Cairns
– Charter has empowered
“Charter Canadians”
• Peter Russell:
– Charter is here to stay, so how
can we make sure it works
well?
• Judicial appointment
• better judicial training
• My view:
– basic principle behind
democracy is mutual respect.
Mutual respect leads to:
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democratic institutions
respect for minority rights
rule of law
respect for freedom
respect for integrity
– What is important is how well
courts perform discretionary
functions, not whether they
have discretion. Do judicial
decisions promote mutual
respect?