Public Law II: Jan The Road to the Charter 1968: Trudeau became PM. He wanted: –stronger federation –patriation of constitution –Const. Charter of Rights –better-protected language and mobility rights 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 const conference compromise

November 1981 compromise Patriation of constitution with the amending formula favoured by most of the premiers (the 7-50 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, 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 1/3 vote –sitting of Parliament, and prov. Legislatures, at least every 12 months

Mobility 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)

ss.7-14 Legal Rights s.7 -life, liberty, security of person. s.8 -secure against unreasonable search and seizure. s.9 -not be detained arbitrarily s.10 (upon arrest) -promptly informed of reason -right to a lawyer -right to be told about right to lawyer! -right to ask judge to determine if arrest is valid, otherwise freed.

A- You must be told the specific offence you are being charged with B- Trial within reasonable time (6 months is precedent) C- You don’t have to testify at your own trial D- You are innocent till proven guilty E- You have the right to reasonable bail S.11 (upon being charged) F- right to jury trial if liable to 5 years imprisonment G- Had to have been an offence at the time committed. H- No ‘double jeopardy’. Not to be charged with same offence twice. i- Right to lesser punishment if the law is changed.

- No cruel and unusual punishment s.12 s.13 -Witnesses who testify wont have self-incriminating statements used against them. (unless its perjury) s.14 - Deaf or don’t speak the language? you have the right to an interpreter

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 programs 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, 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. –applies where numbers warrant

Admissibility of evidence/remedies - (2) evidence may be excluded if its collection violated a right, if admitting it “would bring the administration of justice into disrepute” 24: remedies –(1) “...such remedy as the court considers appropriate” (Strike down, read down)

S.33 Notwithstanding Clause Parliament can override section 2 or 7-15 for a 5 year period.

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: notwithstanding clause can be inserted into legis.(re ss. 2 or 7-15); 5 year limit; can be renewed –34: ss 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: 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?