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The Canadian Charter of Rights and Freedoms: Dawn of a New Era?

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The Canadian Charter of Rights and Freedoms: Dawn of a New Era? THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS: DAWN OF A NEW ERA? Chief Justice Brian Dickson (Retired)1 I am deeply honoured to have been asked to give this year's Merv Leitch Q.C. Memorial Lecture. It gives me particular pleasure to be associated with a lecture series that honours the life of a great Canadian who rose from humble beginnings to pursue a distinguished career of public service and in the law. Merv Leitch was born in Creelman, Saskatchewan in 1926. He grew up through the worst of the depression years, watching his family struggle to keep their farm intact. Eventually, his family moved to Alberta. Merv lived in Alderson and then Redcliff before joining the Navy in 1943 at the ripe old age of seventeen! Upon discharge, he found his way to law school at the University of Alberta, graduating with the gold medal. From 1952 to 1971 Merv practised law with Macleod Dixon, the firm to which he would return in 1982 when he left public life. But of course he is best known to many of us as a man who held a number of key cabinet positions in the Lougheed government: first as Attorney General, later as Treasurer responsible for the Heritage Fund and finally as Minister of Energy. Merv Leitch's accomplishments were truly remarkable and I am pleased to be with you to pay tribute to him this evening. Those who knew or worked with Merv Leitch are well aware that he had an abiding fascination for constitutional law. Indeed, it was his express wish that the Merv Leitch 1 I would like to acknowledge the research assistance of Robert Yalden, (Faculty of Law, McGill University) in the preparation of this paper. - 2 - Scholarship Fund, with which this lecture is associated, reflect his interests and be awarded to students who excelled in constitutional law or natural resources law. Given Merv Leitch's profound interest in the events that led to the adoption of the Canadian Charter of Rights and Freedoms, it is entirely fitting that we should spend some time this evening honouring his memory by reflecting on the impact that the Charter has had on our country. That is why I have chosen as my topic the question: does the Charter mark the dawn of a new era? As many of you will already be aware, the Charter sets out a number of fundamental rights and freedoms. For example, the Charter protects the right not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice. It protects the right to be equal before and under the law and to receive equal benefit and protection of the law. A number of freedoms are guaranteed: freedom of speech, freedom of assembly, freedom of religion. There are legal rights: the right to counsel, the right not to be subjected to cruel or unusual punishment. In addition, the Charter contains provisions dealing with language rights, educational rights, aboriginal rights. If a party invoking one of these rights or freedoms succeeds in establishing an infringement, then the focus of analysis shifts to section 1 of the Charter. That is, the courts must then consider whether the infringement can be demonstrably justified in a free and democratic society. As first year law students know all too well, the Supreme Court of Canada has spelled out a three limbed test for assessing whether an infringement is justifiable; the objective giving rise to the impugned law must be pressing and substantial, there must be a rational connection between that objective and the impugned legislation and the means that the legislation favours in order to realize its objective must be proportionate to the end that is sought. - 3 - Should legislation fail to withstand scrutiny, then the Charter grants courts important powers. They may declare legislation to be of no force and effect. In addition, courts are given broad discretion to fashion appropriate remedies. However, many of you will also know that the Charter contains a provision that enables governments to override judicial review of legislation. This power is found in section 33 of the Charter and is often referred to as the non obstante or "notwithstanding clause". In an outstanding address augurating the Merv Leitch Lecture Series, the Honourable Mr. Lougheed chose as his topic the notwithstanding clause of the Charter. When the caluse is invoked, legislation is effectively insulated for a five-year period from judicial review under some but not all of the Charter's provisions. To date, the provision has been used relatively sparingly, the most notable being the action of the Quebec National Assembly in validating language legislation that the Supreme Court had held to be in breach of the Charter. For those of us who have had the privilege to serve this country as members of its highest court and who sat on that court both before and after 1982, it was clear that the Charter had brought with it change. The Supreme Court of Canada moved from handling such dry matters as jurisdiction over the marketing of eggs or the regulation of transport to emotionally charged issues concerning: abortion, euthanasia, prostitution, native rights, women's rights, language rights, questions concerning breathalysers, searches, seizures, Sunday shopping ... and the list goes on. But did the advent of the Charter, as some have suggested, really mark the "dawn" of a new era? Was the relationship between the courts and the legislature so fundamentally and radically altered as to constitute a completely new chapter in our history? One might be tempted to answer "yes" to these questions were one to limit oneself to the - 4 - media's reaction to the Charter. Whereas in the past it was only the occasional case that attracted a journalist's attention, the press now covers the judiciary's activities on an ongoing basis. The attention garnered by the recent decision in Sue Rodriguez's case concerning the Criminal Code's prohibition on assisted suicide is but the latest example of the coverage that Charter cases now regularly receive. Moreover, some of the Supreme Court's proceedings have now been televised and we will no doubt see other cases unfold on our TV screens. These are all quite dramatic developments for an institution that had gone largely unnoticed for the previous century. Indeed, if there was any doubt in my mind about the impact that the Charter might have on public debate, it was quickly resolved by the sight of television crews in front of the Supreme Court on days Charter cases were to be argued or Charter judgments handed down. I do not doubt that the Charter brought with it new responsibilities for the judiciary. But it has long seemed to me that many commentators are unaware that since 1867 Canadian courts have, in division of powers cases, decided whether Parliament in a particular piece of legislation has infringed provincial authority under section 92 of the British North America Act or whether a provincial legislature has improperly entered the federal domain spelled out in section 91 of the Act. Such is a necessary and important judicial function in a federal state. Many commentators rush to assert that the Charter marks the advent of a new era without fully exploring the nature of the era that preceded and the scope of the changes that the Charter has actually brought about. All too often, one reads grim stories to the effect that the Charter is an unfortunate and radical development: that it has given the courts power that is inconsistent with the history underlying our constitutional democracy; that it has somehow "Americanized" our judiciary2; that the voice of the people has been supplanted by that of a handful of unelected judges out of touch with the 2 See, for example, R. Fulford, "Charter of Wrongs", Saturday Night (December, 1986) 7; E. McWhinney, Canada and the Constitution 1979-1982: Patriation and the Charter of Rights (Toronto: University of Toronto Press, 1982) at p. 112. - 5 - community's values. In my view, although the Charter most certainly has ushered in important changes, we must be careful about jumping to the conclusion that they are so revolutionary as to have given rise to a new era. Before one can embrace such a conclusion, one must first place the Charter in its historical context. One must examine the way in which it has affected not only courts but the overall fabric of our governmental institutions. It is this exercise in placing the Charter in context that I want to explore with you, an exercise, in my view, essential if one is to gain a full appreciation of whether the Charter marks the dawn of a new era and if so, what characteristics serve to define that new era. I will address my topic under four headings, first, the Pre-Charter Context, secondly, the Charter, the Judiciary and Government, thirdly, Values and the Charter, and, finally, the Conclusion. 1. The Pre-Charter Context As every good anthropologist knows, one era is always preceded by another and is in many ways defined by the ways in which it differs from the preceding era. So it is important to come to terms with the Charter's pre-history, so to speak. As the Supreme Court noted in its first Charter judgment3, to understand and to interpret the Charter effectively, it must first be placed in its proper linguistic, philosophical and historical context. In an address in 1979, some three years before the Charter came into force, I observed 3 Law Society of Upper Canada v.
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