Tuesday, April 17, 2012

Thirty Years of the Charter: What has changed, and what has not?

Thirty years ago today, on April 17th, 1982, Canada patriated its constitution and implemented the Charter of Rights and Freedoms.

Views of the Charter have been varied ever since.  My father, a retired police officer, has often said that the Charter was a "make work project for lawyers".  In the criminal law field, he primarily sees the changes made in that arena.  And one can easily understand why police - particularly those whose service predated the Charter - might have a negative overall view of the Charter.  You're doing your job the way you've been told, and suddenly the criminal you worked hard to catch gets to walk free because the Courts find this new thing that you should have done first, but nobody ever told you to do it.

Conversely, however, it's important to look at the other perspective, at people like Donald Marshall, David Milgaard, and Stephen Truscott, who were all wrongly convicted of murder following investigations marred by (at least) tunnel-vision and an absence of appropriate disclosures to the defence.  It's unlikely that any of the three would have been convicted in the post-Charter era.  (Not that we don't still have miscarriages of justice, of course.)

But the effects of the Charter are much broader than simply on criminal law.  Substantive equality rights and fundamental freedoms have had huge impacts throughout society.  The Courts struck down the prohibition on abortion, they ruled that same-sex couples should be allowed to marry.  Both of these are now settled and established principles within Canadian law.  The Charter now protects certain rights in respect of labour organization.  There have been wide applications of the freedoms of religion and expression, and of equality rights, and moreover the various Human Rights statutes throughout the country are essentially a constitutional imperative in many respects.

In other words, a great deal has changed.

But there are limitations on the Charter.  s.1, the "reasonable limits" clause has been routinely applied by the Courts, and to good effect.  Freedoms aren't absolute, but are subject to such limits as are demonstrably justifiable in a free and democratic society.  More controversial is the notwithstanding clause, allowing the governments to expressly disregard certain provisions of the Charter, including s.7 - the right to life, liberty, and security of the person.

The notwithstanding clause has been seldom used, largely due to a lack of political will.  When the Supreme Court forces social reform in accordance with Charter values, the Canadian people are sufficiently on side that elected officials aren't strongly encouraged to use the notwithstanding clause.  In some ways, the notwithstanding clause serves as a balance against the power of the judiciary, and its lack of use is a testament to the appropriateness of the judiciary's conclusions on Charter values.

However, when we look at darker chapters of our history, such as the Japanese-Canadian internment camps, it's worth questioning whether or not the Charter really provides meaningful protection against similar events in the future.  Or at present, as in the case of security certificates.  Mind you, security certificates have been subject to Charter scrutiny - with a 2007 SCC ruling that the process was not compliant with the Charter, following which it was amended in 2008 - but it's surprising and disturbing just how little distaste there was throughout Canada for the unilateral detention of Muslims without charge and with no obligation to disclose the basis for the detention.  (One of the challenges of the Charter is time:  People were held for years under the unconstitutional process before the SCC struck it down.)  The amendment necessitated by the Charter resulted in the creation of independent advocates - essentially, lawyers with security clearance who were entitled to see the evidence against the suspects and required to advocate on their behalfs.  This had the result that a hearing on the reasonableness of the security certificate went from a non-adversarial process, with the Crown simply having to convince a judge in an ex parte process that there were reasonable grounds for detention, to an adversarial one, with a second lawyer in the room able to second-guess the Crown's evidence and point out the deficiencies in the Crown's case.

Consider the case of Hassan Almrei, who was detained in October 2001, until January 2009, when he finally received bail, which ended when the certificate was finally quashed in December 2009.  In fact, a number of certificates were quashed in 2009, which is likely directly attributable to the Charter ruling that disclosure in some fashion was necessary.

Canada still hasn't been too bad in the post-9/11 world as far as civil liberties abridgements are concerned; other liberal democracies have successfully justified very significant intrusions on personal liberties on the basis of security, and despite criticism from legal communities, the majority of the electorate hails these measures as necessary evils, which gives some insight into a particularly disturbing aspect of human nature:  When I am afraid, I am more concerned with my own security than your liberty.

Extrapolate this to a democratic country with a political override for the right to "life, liberty, and security of the person" (and equality rights), and it is entirely conceivable there may come a day when Canadians on the whole are so afraid of a group of people that mass internments may be politically palatable, and that in the distant future Canadian legal historians may be looking back on atrocities committed by the Canadian government in times of crisis despite the Charter, through use of the notwithstanding clause.

In summary, the Charter has marked 30 years of very positive movement for social policy in Canada.  The notwithstanding clause has been, if anything, positive, because it ameliorates any concerns about giving the appointed judiciary too much power.  Yet there remains a concern that the notwithstanding clause could be used for more than simply reeling in judicial activism, and that is a possibility that we as Canadians must always bear in mind - the notwithstanding clause puts power into the hands of the people, and accordingly we must exercise responsibility in regard to its use.

First they came for the communists, and I didn't speak out because I wasn't a communist.
Then they came for the trade unionists, and I didn't speak out because I wasn't a trade unionist.
Then they came for the Jews, and I didn't speak out because I wasn't a Jew.
Then they came for me, and there was no one left to speak out for me.
-Martin Neimoller, 1892-1984

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