By Daniel Schwartz, CBC News Posted: Apr 17, 2012 4:41 PM ET
The 30th anniversary of the Canadian Charter of Rights and Freedoms provides an opportunity to look back and identify some of the big social changes that have flowed from this document.
Here we look at six big changes the charter has brought about — to police powers, women’s and reproductive rights, recognition for gay and lesbian relationships, linguistic and aboriginal rights, and to what is sometimes called judicial activism. They are not ranked in any particular order.
Over the past 30 years, particularly since the charter’s equality rights section came into force, the courts have overturned many laws that they felt went against the charter. But it is also the case that governments have won more often than they have lost on charter challenges before the Supreme Court.
In addition to consulting published material and video and audio for this story, CBC News interviewed:
- Nathalie Des Rosiers, general counsel for Canadian Civil Liberties Association and a law professor at the University of Ottawa, previously a dean and former president of the Law Commission of Canada.
- Marilou McPhedran, principal of the University of Winnipeg Global College, and former chief commissioner of the Saskatchewan Human Rights Commission and founder of the Women’s Legal Education and Action Fund (LEAF).
- Rainer Knopff, a political science professor at the University of Calgary and author or co-author of three books on the charter, including, in 2008, The Court and the Charter: Leading Cases.
1) Limiting police powers
One of the more significant changes over the past 30 years has been court-enforced legal safeguards and accountability for policing, Des Rosiers observes.
There were a number of charter cases that codified these changes, including the Oakes case in 1986 in which the Supreme Court overturned a law that had required the accused to disprove a presumption of guilt, in this case for possession of narcotics for the purpose of trafficking. The defendant testified that he was holding the drugs for his own use, to manage pain from a workplace accident.
On the charter’s 25th anniversary, leading charter experts voted the Oakes case as the case that has had “the greatest impact on the charter’s interpretation and evolution” because it’s a symbol of the charter’s goal of maintaining balance between legislatures and courts and “between the rights of individuals and the demands of democratic society.”
Nathalie Des Rosiers of the Canadian Civil Liberties Association argues that one way the charter has led to significant change is by requiring more accountability for policing and more legal safeguards. (David Smiley/courtesy CCLA)They also found that Oakes was the most cited charter decision.
In its latest decision, on April 13, the Supreme Court struck down a law that allows police to tap telephones without a warrant in what police call an emergency, citing the charter, and asked Parliament to rewrite its wiretap legislation to provide for suitable accountability.
Because of the charter there is more protection for privacy and more disclosure obligations between the Crown and the defence, As well, says Des Rosiers, “good policing practices have now moved from being good to mandatory to have.”
Roy McMurtry, Ontario’s attorney general from 1975 to 1985, and later the province’s chief justice, said the charter “has done a lot to strengthen the individual rights of the accused.”
McMurtry, who helped draft the Constitution during the patriation battles of 1981-82, was speaking on CBC Radio’s The Current.
2) Women’s reproductive rights
Dr. Henry Morgentaler speaks at press conference in Toronto Jan. 28, 1998 to mark the ten-year anniversary of the Supreme Court that ruled Canada’s abortion laws were unconstitutional. (John Lehmann/Canadian Press)The key decision in this instance was the 1988 Morgentaler case, in which the Supreme Court ruled that the Criminal Code sections on abortion were unconstitutional.
By the time of that ruling there was only one woman on the Supreme Court — Bertha Wilson, the first woman to be appointed.
Siding with the majority, “she anchors her decision in what prior to this case had been seen as almost exclusively an area of criminal law for the accused, section 7, liberty,” McPhedran points out.
“The right to liberty contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives,” Wilson wrote in her decision.
Lawyer and rights activist Marilou McPhedran said the Supreme Court’s decision in the 1988 Morgentaler case ‘really captures the reality of women’s lives. (Courtesy Marilou McPhedran)Knopff notes that the Supreme Court “took a stand that is much more modest and moderate than what the Morgentaler decision is portrayed as, rhetorically.”
The court left the door open for Parliament to rewrite the legislation but that has not happened and abortion has effectively been legal in Canada since 1988.
For McPhedran, the Morgentaler decision “really captures the reality of women’s daily lives, and it focuses on the difference between a theory of a right and living a right.”
3) Recognition of the LGBT community
Through a series of decisions the courts have recognized rights of lesbian, gay, bisexual and transgender Canadians, despite the fact that sexual orientation is not specifically mentioned in the charter itself.
In the 1998 Vriend decision, the court read sexual orientation into Alberta’s human rights legislation, confirming earlier decisions prohibiting discrimination on those grounds.
That decision led the Alberta government to the brink of invoking the notwithstanding clause, but in the end it shied away.
From Vriend, decisions on pensions and the marital rights of same-sex cohabiters, followed by a reference to the Supreme Court on same-sex marriage and the constitutionality of the Civil Marriage Act extended rights and recognition to the LGBT community.
Des Rosiers said that through its combination of litigation and activism, this was “a community that did it right.”
4) Linguistic rights for francophones outside Quebec
Through a series of provincial and Supreme Court decisions, the charter gave francophones outside Quebec access to French schools, school boards and even hospitals. Canada now has a generation called “section 23 kids” who were educated in these schools, where numbers warranted.
Des Rosiers considers those decisions to have been among the most important to have been given effect by the charter but she also notes that “language politics in Quebec haven’t changed that much” by comparison. The Quebec government famously employed the charter’s notwithstanding clause to override a Supreme Court decision on its main language law, Bill 101, in 1989. Some years later, however, it rewrote its language laws to comply with the top court’s ruling.
Also, an amendment (section 16.1) to the charter, one of just two, specifically about New Brunswick, helped give “a certain sense of affirmation about the Acadian community,” Des Rosiers notes.
5) Strengthened aboriginal rights
The charter’s recognition of Aboriginal Peoples “sent a very important message,” Renée Dupuis, the former chief commissioner of the Indian Specific Claims Commission, told CBC News last year.
The other amendment to the Charter, to section 25, was on aboriginal land claims.
The charter has imposed on governments a duty to consult aboriginal peoples when resource development and other government changes affect them unduly. It does not give native groups an absolute veto on these changes but it does ensure they will be able to participate in the process.
In the 1990 Sparrow decision, the Supreme Court affirmed that certain historic aboriginal rights, such as fishing, require protection by federal and, in some cases, provincial governments as part of an ongoing fiduciary obligation towards native peoples.
In Des Rosiers’ view, the charter “has created a change in the negotiating power of the aboriginal community.”
6) Judicial activism
For Rainer Knopff, the biggest change, institutionally, is that the charter “amounts to a significant transfer of policy making to the courts,” especially in an area that could be described as “morality issues.”
“The charter has meant that the courts have a major influence on those things in a way they wouldn’t have previously,” he says.
McPhedran also said that the charter has had a big impact on judicial activism, although she noted that the practice is not new.
There was the U.S. Supreme Court’s overturning of parts of the New Deal in the 1930s and in Canada there was Roncarelli v. Duplessis in 1959.
In that famous case the Supreme Court ruled that no public official is above the law, specifically the premier of Quebec at the time, Maurice Duplessis, who had revoked Frank Roncarelli’s liquor licence because he was financially helping his fellow Jehovah’s Witnesses who had been arrested for handing out religious literature.
Des Rosiers argues that Canadian legislatures do not have less power than before the charter, that they continue to exercise wide-ranging authority and can always use the notwithstanding clause (which has to be renewed every five years after it is employed) to circumvent most court decisions.
What has changed, Des Rosiers said, is that the charter forces governments to justify all legislation in light of human rights.
While noting that before the charter there was concern on both the left and the right about judicial activism, McPhedran observed, “the so-called ‘anti-judicial activism forces’ in this country, many of whom are now senior advisors to our federal government, have been brilliantly successful in redefining what it means to be a so-called judicial activist.” She argues that they have had “a real impact on the way in which judges write and the extent to which they will reach.”
The charter’s impact abroad could be added as a seventh big change, because of the global impact. See our story, Charter of Rights turns Canada into a ‘constitutional’ trendsetter.